Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY
	[2012] HCJ 38   OPINION   by   THE HONOURABLE LORD DOHERTY   in causa   HER MAJESTY'S ADVOCATE   against   RL   _______

 

Act: K. Harper, A.D.; Crown Office

Alt: L. Ewing, Solicitor Advocate; Turnbull McCarron, Solicitors

 

6 March 2012

Introduction

[1] The accused is aged 73. He has been indicted for trial at the High Court in Glasgow. Charges 1-3 are charges of contraventions of the Section 12 of the Children and Young Persons (Scotland) Act 1937. Charges 4, 5 and 14 are charges of assault to injury of each of his three children (KL, HL and SL). In relation to each of his two daughters he is also charged with lewd, indecent and libidinous practices and behaviour, and with rape (with an alternative of incest after each daughter reached the age of 12) (charges 6-9 for KL and 10-13 for HL). The offences are said to have been committed between 12 December 1973 and 27 June 1980 when the children were aged 8-14 (KL), 7-13 (HL), and 4-11(SL). It appears that the accused's wife - the children's mother - left him and the children on 12 December 1973. The children continued to live with the accused until the summer of 1980. On 27 June 1980 KL attended at hospital suffering from severe bruising. The treating doctor considered them to be non-accidental injuries. She was taken into care. On 2 July 1980 HL and SL were taken into care. From about Spring 1981 KL and HL resided with their mother. SL remained in care for some considerable time after that.

[2] A Devolution Issue Minute has been lodged on the accused's behalf. It is maintained that reliance by the Crown on the terms of a police interview of the accused on 30 August 2010 would be unlawful in terms of the Scotland Act 1998, section 57(2) because it would be incompatible with his Article 6.1 and 6.3.d Convention rights. In addition, the accused has lodged a further Minute containing a preliminary plea in bar of trial on the ground of oppression.

[3] I considered both Minutes at a continued preliminary hearing and an evidential hearing held on 6 and 7 February 2012. I reserved my decision.

 

Devolution Issue

The facts

[4] DC Shauna Davies is the reporting officer in the accused's case. She took statements from KL and HL around the end of 2009 and the beginning of 2010. In about August 2010 the decision was taken to interview the accused. She visited him at his home on Saturday 28 August 2010. She informed him that an allegation had been made against him and that it involved historic sex abuse. She invited him to attend for interview on a voluntary basis at Glasgow City Centre Police Station. At that stage she did not inform him who had made the allegation. She advised him that he could consult a solicitor and that he may wish to do so before he attended. The accused had said that he did not think he wished to do so. From her conversation with him she was satisfied that he had understood what she had told him. She concluded because of this, and having regard to the fact that he was living alone and independently, that he did not fall into the category of a vulnerable witness who might require special measures.

[5] The accused attended for interview at the police station on Monday 30 August 2010 at about 11 a.m.. Shortly thereafter the Solicitor Access Recording Form current at the time was completed. As part of that procedure the following statement was read to the accused:

"I must advise you that you can have a consultation in person with a solicitor in advance of an interview. In the first instance you will be permitted to speak privately by telephone with your nominated Solicitor/Duty Solicitor/PDSO Solicitor. Do you wish to consult privately with a solicitor by telephone?"

The accused responded that he did not.

[6] The interview of the accused commenced at 11.18. After confirming the accused's details DC Davis indicated to him that he was "going to be asked questions about the crimes of indecent assault and lewd, indecent and libidinous practices and behaviour." He was cautioned at common law. The accused confirmed that he had attended voluntarily for interview and that he understood he was free to go at any time. Thereafter the following exchange took place:

DC Davis "... (W)hen I came up to your house on Saturday I also spoke to you ... regarding if you wanted to contact a solicitor ... prior to the interview and you said at that time that you ... weren't wanting to contact a solicitor ... prior to the interview and you said at that time that you weren't wanting to contact a solicitor"

Accused "Naw I want wanted to know what it was about to start with"

DC Davis "Right okay."

Accused "Before I seen the lawyer, know?"

DC Davis "Aye. So you are happy for us to interview you today?"

Accused "Aye"

DC Davis "Without you having seen a solicitor?"

Accused "That's correct."

DC Davis "That's fine?"

Accused "Yeah"

DC Davis went on to ask the accused "What can you tell me about the indecent assault of [HL] and lewd, libidinous practices and behaviour used towards [HL]?"

He replied:

"This is eh news to me to be honest with you you know? If any thing of that sort's happened its happened because when I've been blacked out or something like that, because I've taken an awful lot of black outs, see I've been an alcoholic for 45 years".

He continued to explain that he had "come off the drink himself" and had been off it for the last four weeks. Later in the interview DC Davis put to him the allegation that he had had anal intercourse with HL. The accused denied all the allegations, but he conceded the possibility that things may have happened on occasions when he had blacked out. He said that he had never known HL to lie. He admitted that when drunk he had neglected the children, and that on one occasion he had physically assaulted KL. DC Davis then continued:

"Okay. What I'm gonnae do is ah'm gonnae just caution you again cos we've got information ... that this was reported a number of years ago, something else and that you were spoken to by the police about 35 years ago... and I'll just caution you again ... that ... I'm now you're going to be asked questions about rape and lewd and libidinous behaviour. You're not bound to answer but if you do your answers will be tape recorded and noted and may be used in evidence, do you understand? Okay but just in fairness to yourself ... I'm gonnae speak to you about it today and make you aware if further alle...you know these further allegations that I'm aware of okay? And I'm going to ask you a question, what can you tell me about the allegation that you raped and used lewd, indecent and libidinous practices and behaviour towards [KL]?"

The accused denied the allegations of such behaviour towards KL. He indicated that when KL was taken into care she was medically examined and her social worker, Mr Wells, had told him she was "intact". He stated that she was still a virgin at a later date when she married. He indicated that KL and he had not liked each other, that she was out to get him, and that she was probably jumping on a bandwagon with HL. At the end of the interview the accused was arrested and cautioned. He was informed that charges would be read to him and that at the end of each he would have an opportunity to answer if he wished. The accused indicated "Well I'd like to see a lawyer after that". He was charged with lewd, libidinous and indecent practices and behaviour towards KL (at common law and in terms of section 5 of the Sexual Offences (Scotland) Act 1976), and rape of KL; and with lewd libidinous and indecent practices and behaviour towards HL (at common law and in terms of section 5 of the Sexual Offences (Scotland) Act 1976), and assault of her by penetrating her anus with his penis. After the first of the charges had been read to him he was asked if he had anything to say in answer and he replied "No, I'll see a lawyer first". In relation to each of the other charges when asked if he had anything to say he replied in the negative.

[7] DC Davis indicated that both at the time of the visit to the accused's home and at the time of the interview there were no signs of the accused being under the influence of alcohol; or suffering from blackouts; or being of low intellect; or being otherwise vulnerable in any way. She described him as very sharp, very "switched on". He was able to assert himself and got very angry at one stage of the interview. She explained that in approaching matters in the order she did she had been following the complainers' statements.

[8] The interview took before the decision in Cadder v HM Advocate 2011 S.C. (UKSC) 13, and before the enactment (on 29 October 2010) and commencement (on 30 October 2010) of section 15A of the Criminal Procedure (Scotland) Act 1995. Section 15A provides (in subsection (2)) that a suspect has the right to have intimation sent to a solicitor of his detention, attendance at a police station or other place for questioning, or arrest as the case may be. It further provides:

"... (3) The suspect also has the right to a private consultation with a solicitor -

(a) before any questioning of the suspect by a constable begins, and

(b) at any time during such questioning.

... (6) The suspect must be informed of his rights under subsections (2) and (3) -

(a) on arrival at the police station ..."

[9] The accused was told that he had a right to consult with a solicitor prior to the interview. He was not told on arrival at the police station (nor indeed at any time prior to the interview or during it) that he had a right to consult with a solicitor at any time during his questioning. Accordingly, had section 15A been in force what was said to the accused by the police would not have complied with subsection (6) because he was not informed of the right referred to in subsection (3)(b).

 

Submissions for the accused

[10] On behalf of the accused Mr Ewing submitted that the accused's Article 6 right to legal representation had been breached. He did not contend (and indeed eschewed the suggestion) that compliance with Article 6 necessitated that the accused should have been told he had the right to a private consultation with a solicitor at any time during questioning. Nor did he argue that the accused had been vulnerable or had required more by way of safeguards than a person of ordinary understanding and fortitude. His position was that in the whole circumstances of this case I should not be satisfied that there had been waiver by the accused of his right to obtain legal advice. There had not been a knowing and intelligent relinquishment by the accused of the right to seek legal advice. His decisions (prior to and at the commencement of the interview) not to consult with a solicitor had been uninformed decisions because at both those times he had not been fully advised as to the nature of the allegations about which he was to be questioned. He had not been made aware of the gravity of the allegations - that they involved a charge of rape and a charge of anal intercourse, and that the complainers were his daughters. Without such vital information the accused had not been in a position to make an informed and intelligent waiver - particularly as he had made clear that his intention was to delay seeking legal advice until he had details of the allegations. In support of his submissions Mr Ewing relied upon Salduz v Turkey (2009) 49 EHRR 19 at paragraphs 54, 55 and 59; McGowan v B 2012 SLT 37 at paragraphs 30, 76, 78, 127; and Pishhcalnikov v Russia, Case 7025/04, 24 September 2009, paragraph 77.

 

Submissions for the Crown

[11] In response the advocate depute submitted that the accused had been advised of his right to consult a solicitor two days before the interview and at the time of the interview. Section 15A had not even been enacted at the time. In some respects (e.g. in relation to the requirement to inform a suspect of the right to a consultation with a solicitor at any time during questioning) the obligations introduced by that section were more stringent than the requirements of Article 6 as they had been interpreted by the European Court of Human Rights and the UK Supreme Court. Had the interview taken place after section 15A was in force there would have been a technical breach of section 15A(6) in respect of failure to inform the accused of the section 15A(3)(b) right, with the result that the evidence would have been irregularly obtained. The question would then have been whether that irregularity ought to be excused. On the evidence, the accused was not a vulnerable person who required special measures. He had been told that the interview was about matters of historical sex abuse. He had understood that he could consult a solicitor and it had been apparent to him that the matters being investigated were serious. He had made it clear he was content for the interview to proceed. He had waived his right to consult with a solicitor. The waiver had been express. In the circumstances it had been voluntary, informed, and unequivocal (McGowan v B, paragraph 21).

 

Discussion
[12] Standing the way in which issues were ultimately focussed before me it is unnecessary (and, I think, in the circumstances of this case, would be inappropriate) for me to express opinions on certain of the matters touched upon during submissions (e.g. whether or not certain of the obligations introduced by section 15A are more stringent than the requirements of Article 6 (as they have been interpreted by the European Court of Human Rights and the UK Supreme Court); and what the consequences of failure to comply with section 15A should be).

[13] The essence of Mr Ewing's argument was that because the accused did not know the full particulars of the allegations made against him until they were disclosed during the interview, he had not voluntarily, informedly and unequivocally waived his right to consult with a solicitor.

[14] On the evidence there is no suggestion that the accused's declining to consult a solicitor was other than voluntary. Nor can it be said that it was not unequivocal. The crucial issue is whether it was an informed decision.

[15] It is not difficult to envisage circumstances where a waiver might be uninformed. Thus, for example, if a suspect was told that he was to be interviewed in relation to a very minor alleged offence, and was advised of his right to consult a solicitor but declined to do so, those would be the circumstances which informed his waiver. If in fact he was then questioned in relation to a serious crime, his declining could not be relied upon as being a waiver of his right to consult with a solicitor in relation to questioning about the serious crime. The waiver would not have been informed in relation to such questioning: it would have proceeded on an entirely different basis.

[16] The scenario just mentioned is one which is very far removed from the circumstances of the present case. The accused was told that the police wished to interview him in relation to historic sexual abuse. That conveyed to him that the inquiry concerned a very serious matter: in my view it is inconceivable that he could have thought otherwise. That was the context in which he indicated he did not wish to consult with a solicitor until after he had been interviewed. In my opinion it was not necessary, in order for his decision to be an informed one, for him to have had the further particulars desiderated by Mr Ewing. It appears to me that there is nothing in the Strasbourg jurisprudence to which I was referred, or in McGowan v B, which compels me to reach a different conclusion.

[17] It follows that I am not persuaded that the Devolution Issue Minute is well founded.

 

Oppression

Submissions for the accused

[18] Mr Ewing referred to McFadyen v Annan 1992 JC 53 at pages 60-61 and to HM Advocate v McGill 1997 SLT 1156 at pages 1158-1159. He took four propositions from these cases. First, the test to be applied is that set out in McFadyen v Annan, viz.. whether the risk of prejudice to the prospects of a fair trial was so grave that no direction by the trial judge could be expected to remove it. Second, passage of time on its own will not suffice to found a plea of oppression. Third, nor will non-specific or speculative assertions of loss of records or witnesses. Fourth, it is only in rare and exceptional cases that the plea will be upheld. He acknowledged that the hurdle he had to meet was a high one. He maintained that here, as in HM Advocate v K 2011 SLT (Sh Ct) 205, the plea was well founded. He also relied upon the English decision of R v Brian Selwyn B [2003] EWCA Crim 319, where on appeal a conviction was quashed: the Court of Appeal considered that, because of the very long lapse of time between the offences and trial and the very limited evidence that was available, the Appellant was put in an impossible position to defend himself.

[19] In relation to the non-sexual offences (charges 1-5 and 14) the accused's position is that in 1980 he was charged by the police with neglect and physical assault of his three children. He is less sure whether he was served with a complaint - but believes he was. He recollects attending at court and being told that the case had been continued. He was later told that he did not have to go back to court. He did not instruct a lawyer. The information was given to him by one of the social workers involved with the children, he thinks Mr Wells.

[20] Mr Ewing submitted that in relation to this group of alleged offences the accused was ignorant as to the reason why the prosecution was discontinued. It was a "live possibility" that the Crown may have unequivocally abandoned its right to prosecute him for these offences, and that he had tholed his assize. As a result of the lapse of time and the loss of records the accused was not in a position to investigate and establish this.

[21] In relation to the alleged sexual offences the accused's position is that he was not interviewed or charged in relation to any alleged sexual offences at any time before 2010. He recalls being told by a social worker, Mr Wells, that KL was medically examined after she was take into care and that she was "intact": she had not had intercourse (Transcript of accused's interview, page 71). There are no extant records of any such examination. KL provided a police statement in 2010 in which she stated she was medically examined at a police station in 1980 and that she was told that the results of the examination did not support her allegations of sexual abuse.

[22] Mr Ewing argued that the accused was prejudiced in the conduct of his defence because, due to the very long time which had elapsed (between 31 and 38 years), (i) witnesses were no longer available - a neighbour, Mrs Nicolson, was dead, a former female friend Caroline Fitzpatrick (or Fitzgerald) had not been traced, and social workers and police officers had not been traced; (ii) any police statements given by the complainers in 1980 no longer existed; (iii) records relating to the medical examination of KL no longer existed; (iv) almost all relevant medical, police, social work, procurator fiscal and sheriff court records no longer existed. In relation to (iii) there was no witness who could speak to the actual examination and findings. KH and the accused could only say what they were told by others. The absence of direct evidence of the findings of the examination was particularly prejudicial to the accused. He accepted that the lack of positive findings would not have been determinative (because it would neither have confirmed nor refuted abuse) but it would have been an important piece of evidence for the defence.

[23] Mr Ewing submitted that as a result of the passage of time and the loss of evidence the accused had been left in the position where all he could say in his defence was "I did not do this"(cf. R v Selwyn B) . There was a grave risk of prejudice to a fair trial and no direction by the trial judge could be expected to remove it.

 

Submissions for the Crown

[24] In response the advocate depute submitted it was speculative to suggest it was possible that the Crown may have unequivocally abandoned the right to prosecute in respect of any charges. It was difficult to see why the Crown would have. There was no colourable basis for maintaining that the accused may have tholed his assize in relation to any charge

[25] KL could speak to having been medically examined and to what was said to her about the examination. Her evidence on this point favoured the accused: her understanding was the examination findings did not positively support her allegations of sexual abuse. The Crown position would be that the lack of positive findings did not refute that abuse took place.

[26] SL's social work file had been recovered. It contained significant material relating to all three children and their parents. There were also records relating to two hospital attendances by KL - in 1977 with a fractured shoulder, and the attendance with severe bruising on 27 June 1980. Nonetheless, there was no doubt that other medical, social work, police, procurator fiscal and sheriff court records which might have existed could not now be found. That would cause some difficulty at the trial for both Crown and defence.

[27] However the difficulties caused by the lapse of time and the loss of evidence were matters which the trial judge could deal with by giving the jury appropriate and careful directions. This was not a case where the risk of prejudice to a fair trial was so grave that no direction by the trial judge could be expected to remove it. In any event, if it became apparent to the trial judge during the course of the trial that there was indeed a risk of such prejudice he could desert the trial (HM Advocate v McGill at page 1159).

 

Discussion

[28] On the basis of the material placed before me there is some doubt as to whether there was indeed any prosecution of the accused. One of the documents contained within the Social Work Department file (Cro. Pro. No. 18) is dated 6 August 1980 and is headed "N.A.I. Review on the [L] children". A police constable attended that Review. He reported that the accused "has been charged on 4 accounts (sic) 3 of assault and 1 neglect charge". There is a brief reference within the same records, at the end of the case review of 2 July 1980, to "Matter to be referred to the Procurator Fiscal by Police" (Cro. Pro. No. 18, paginated 336). I was informed that searches of the procurator fiscal's records and sheriff clerk's records had produced nothing relating to the accused, and that there was no record of any relevant conviction at SCRO. (I was told that records at SCRO are held only for thirty years post-conviction or until the offender reaches the age of 70, whichever is the earlier, and that accordingly any relevant convictions would not have been kept).

[29] Even if matters did proceed beyond the stage of being charged by the police, the contention that the accused may have tholed his assize appears to me to be entirely conjectural. I agree with the advocate depute that there is no colourable basis for concluding that the Crown unequivocally abandoned its right to proceed against the accused in relation to any charges.

[30] It is inescapable that some witnesses and documents which may have been available at an earlier date will not now be available for the trial.

[31] I observe, however, that the Social Work Department file for SL (which is available contains significant documents relating to all three complainers. These include case conference reviews for them dated 2 July 1980, 6 August 1980, and 11 August 1981. The terms of the file tend to support the proposition that the complaints about the accused which were made by KL and HL at around that time were of neglect and physical abuse. There is no entry which refers to, or suggests, that any complaint of sexual abuse was made by either KL or HL. That is in keeping with HL's acceptance in her recent police statement that she made no such complaint at that time. KL's position appears to be that she did make a complaint of sexual abuse, that she underwent a medical examination at a police station, but that she was told the findings were not supportive of her complaint.

[32] The lack of evidence - both oral and documentary - from those who carried out the examination would, Mr Ewing maintained, result in a grave risk of prejudice to the accused which could not be removed by appropriate directions being given. I am not persuaded at this stage that that must be the case. I bear in mind the context, which includes (i) there being no supporting reference in the available social work records to a sexual abuse complaint having been made by KL; (ii) the fact that it is accepted that the suggested findings on examination were not determinative of whether or not there had been penetration of KL's vagina; (iii) the fact evidence from KL as to what she was told was the result of the examination would be admissible hearsay evidence as to the fact that it was said to her; (iv) that what the accused said at interview he had been told by Mr Wells about the examination would be admissible hearsay evidence as to the fact it was said to him by Mr Wells.

[33] As in HM Advocate v McGill it appears to me that, at this juncture, the extent of any possible prejudice which may be caused to the accused by the lapse of time must, to a very considerable extent, be a matter of speculation. In my opinion it cannot be said that the combination of factors upon which the Mr Ewing relies must inevitably give rise to a risk of prejudice which is so grave that it could not be removed by the trial judge giving appropriate directions. If in the light of the evidence at the trial the judge is persuaded that such a risk does indeed arise he could at that stage protect the interests of the accused by deserting the diet (HM Advocate v McGill at page 1159).

[34] In reaching that decision I do not find R v Selwyn B to be of any real assistance. That case did not turn on the application of the test which I have to consider. In fact, there the defence motion to stay proceedings as an abuse of process was unsuccessful. The accused was convicted after trial. His conviction was quashed on appeal. The offences he faced concerned a single complainer. The Court of Appeal stressed at the outset of its judgment (paragraph 1) that under English law corroboration was not required. It concluded that in the whole circumstances, having regard to the lapse of time between the offences and the trial and the very limited evidence which was available in the case, it was its duty to allow the appeal.

 

Decision

[35] I shall repel the plea in the Devolution Issue Minute. I shall also repel the preliminary plea of oppression.