Appellant: Shead, M C Mackenzie; Drummond Miller

Respondent: Fairley, Advocate depute; Crown Agent

18 May 2012

Introduction

[1] This appeal concerns first, the admissibility of a comment and a subsequent voluntary statement made by the appellant on 14 August 2009 following the termination of a police interview struck at by Cadder v HM Advocate, 2010 SCCR 951; 2011 SC (UKSC) 13; 2010 SLT 1125; and secondly, whether the appellant waived his right to consult a solicitor.

Background

[2] The appellant was charged inter alia as follows:

"(1) On 17 March 2009 at [a given address] you ... did assault and abduct [AR] aged 14 years ... prevent her from leaving the property by locking the door, take possession of her mobile telephone and detain her against her will and did seize her by the body and pin her on a sofa, kiss her on the mouth and neck, place your hand inside her trousers, touch her private parts, and insert your finger into her private parts all with intent to rape her ...

(3) On various occasions between 1 June 2009 and 16 June 2009, both dates inclusive at [a given address] or elsewhere you ... did send by means of a public electronic communications network messages to [LA] aged 13 years ... that were grossly offensive or of an indecent, obscene or menacing character in that they were indecent and obscene; contrary to the Communications Act 2003, section 127(1)(a)."

[3] In the course of the trial in December 2009, the Crown accepted a plea of "Not guilty" to a second charge (with which this appeal is not concerned), and the appellant pled guilty to Charge 3. The appellant was then convicted by the jury of Charge 1 under deletion of the words "prevent her from leaving the property by locking the door, take possession of her mobile telephone" and "all with intent to rape her". On 21 January 2010 the appellant was sentenced to 18 months detention.

[4] In relation to the appellant's interview by police officers, his subsequent comment, and his voluntary statement, Lord Hope set out the relevant facts in the Supreme Court in paragraphs 22 to 26 of Jude v HM Advocate, 2012 SCCR 88, 2012 SLT 75 as follows:

"22 The facts which provide the background to the argument in Birnie's case are as follows. He was interviewed under caution in a police station on Friday 14 August 2009 between 10.34 and 12.20 hrs with a break between 11.18 and 12.06 hrs. At the time of his interview he was 18 years of age. He had been on probation since 2008 [in fact since 12 March 2009] in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. He had also previously been interviewed by the police as a suspect. As already mentioned in paragraph 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act.

23 Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. He said that this was consensual. He was asked during his interview what expression he would use to describe touching his girlfriend's private parts, to which he replied with a question: 'fit like poking her?' When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. After further questioning he was charged with sending indecent messages to that complainer.

24 Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. At 12.23 hrs he asked what was happening to him. He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he burst into tears and said spontaneously: 'I poked her'. He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied, 'Yes'. He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. At 12.35 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It was not until about two hours later, at 14.28 hrs, that a message was left with the solicitor's secretary to advise him of the arrest. Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone.

25 Birnie then told the police that he wished to make a further statement, which he did at about 13.45 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the enquiry. Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. He replied that he did not. He was asked whether he wished a solicitor to be present while he was making it. He again said that he did not. He was then cautioned and asked whether he understood the caution, to which he replied 'Yeah'. He then said: 'I want to admit poking [AR]. She asked me to do it and we did give each other love bites.' He was asked to say what he meant by 'poking', to which he replied that he meant 'putting your fingers in her vagina'. He then said: 'I never locked her in. I never locked her in her house. I asked her several times if she wanted to leave but she says no. I didn't threaten her in any way.'

26 It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both of these offers..."

Submissions on behalf of the appellant

[5] Counsel submitted that the appellant's comment "I poked her" could not be severed from what had gone before. While it was accepted that an unsolicited admission could be admissible if it was freely given, without pressure or inducement, and not elicited by questioning (Jude, paragraph 30), it was not realistic to regard this comment as voluntary. Even if it could be regarded as voluntary in some sense, the surrounding circumstances were such that the Crown should have decided not to lead it in evidence. Each case had to be determined on its own facts: Jude, paragraph 32. In the present case, the appellant knew that he had made certain admissions during the police interview, namely that he had been alone in the house with the complainer, and that consensual kissing had taken place. Without the benefit of legal advice, the appellant did not know what significance a court would attach to those admissions. The period of time between the end of the interview and the making of the comment was very short: contrast with the circumstances in R v Cherie McGovern (1991) 92 Cr App R 228 (where an even longer passage of time did not prevent a second voluntary interview from being held to be tainted by an earlier challengeable interview). Whether an event was truly severable by reason of time was always a question of degree: Chalmers v HM Advocate 1954 JC 66, at pages 76 to 77. If there was a close connection in circumstances and time, the previous interview tainted what followed. Counsel's contention was that both the comment and the voluntary statement were very close in time to, and intimately connected with, the earlier interview struck at by Cadder. Accordingly neither should have been led in evidence: section 57(2) of the Scotland Act 1998. Both should be excised from the evidence, in which case there would be no corroboration of the complainer's account, resulting in an insufficiency of evidence: cf Lord Hope at paragraph [64] of Cadder. Further, if the court were to take the view that the common law offered the appellant better protection than the European Convention on Human Rights (ECHR), then the court should apply the common law and rule the evidence of the comment and the voluntary statement inadmissible.

[6] In relation to waiver, as the burden of establishing waiver lay with the Crown, counsel reserved the right to respond to the Advocate depute's argument on that matter.

Submissions on behalf of the Crown

[7] Severability: The Advocate depute submitted that the right arising from Salduz v Turkey (2009) 49 EHRR 421 ("the Salduz right") was simply not engaged. Both the comment and the voluntary statement were properly to be regarded as severable from the police interview: cf paragraph 30 of Jude. The case of R v Cherie McGovern was distinguishable on its facts. The essence of Salduz and Cadder was the obtaining of incriminating answers as a consequence of police questioning. Four important features of the present case should be noted: (i) neither the comment nor the voluntary statement were answers to police questioning; (ii) the comment was made after the termination of the police interview: questioning had stopped, and the appellant's status had changed as he had been charged; (iii) the appellant was offered a solicitor before he began his voluntary statement; (iv) it was not suggested during the trial that there had been any vulnerability on the part of the appellant such that the obtaining of any of the statements was unfair at common law: contrast with counsel's objections taken in Chalmers v HM Advocate cit sup and Hartley v HM Advocate 1979 SLT 26. Salduz was directed to police questioning and interrogation: cf paragraph [3] of Gilmour v HM Advocate, 12 January 2012, XC 750/11; Mullen v HM Advocate, 2011 SCCR 438, 2011 SLT 913. The precipitating factor here was not the police questioning during the prior interview, nor any pressure or inducement, but rather the information given in response to the appellant's question about what was going to happen. The decision not to grant the appellant police bail could not be criticised, standing the appellant's age, previous convictions, probation order, and the evidence against him. Nor was the voluntary statement tainted by the earlier interview: what precipitated the voluntary statement was information about being kept in custody, not the prior interview.

[8] Waiver: Esto the comment and voluntary statement were not severable from the police interview, the appellant had waived his right to a solicitor. It was not necessary that the appellant be informed about the consequences of waiver: see the majority view in McGowan v B, 2012 SCCR 109, 2012 SLT 37, particularly Lord Hope at paragraph 46, Lord Dyson at paragraph 70, and Lord Hamilton at paragraphs 91 and 94. The minimum guarantees were that the appellant had been told of his right, that he understood what the right was and that he was giving up that right (i.e. waiving it), and that the waiver was made freely and voluntarily. In the present case, there was nothing to suggest that the appellant was abnormally vulnerable: contrast with the circumstances in R v Cherie McGovern, cit sup.

Reply on behalf of the appellant

[9] Counsel pointed out that the reasoning underlying the right to a solicitor was not limited to advising about an interview, but included other practical aspects such as the protection of the suspect while in custody, the monitoring of his conditions, and so on: paragraph 54 of Salduz. Every suspect was vulnerable to some extent, and required advice such as that described by Lord Brown at paragraph 108 of Cadder (viz "not to make incriminating statements despite whatever inclination he might otherwise have to do so"). Because the appellant was denied a lawyer at the appropriate time, he was denied the right of being advised to say nothing. In the appellant's case, considerable damage had been done by the time the tape‑recorder had been switched off. It was difficult for the Crown to establish a valid waiver, particularly where there was vulnerability in emotional terms as described by Lord Hope. The reasoning and conclusion of Lord Kerr at paragraph [57] of Jude should be adopted.

Discussion
The comment and the voluntary statement

[10] On 14 August 2009, when interviewed by the police, the appellant was aged 18. He had four previous convictions, one being a breach of the peace with a sexual aggravation (resulting in his being a registered sex offender), and two being breaches of the notification requirements in terms of the Sexual Offences (Scotland) Act 2003. He had previously been interviewed by the police as a suspect: Statement of Facts and Issues for the Supreme Court, paragraph 44. He had been placed on probation for 18 months in respect of the breach of the peace with the sexual aggravation on 12 March 2009, only five days before the alleged offence on 17 March 2009. He was therefore not inexperienced in the justice system. Nor, on the information available, was he suffering from any illness or condition which affected his health or intellect. The interview with the police - accepted by the Crown as struck at by Cadder - terminated at 12.20 pm. It was not suggested, either during the trial or the appeal hearing, that the police officers conducting the interview acted improperly in any way. In particular there was nothing which could be characterised as, or even misapprehended to be, pressure, inducement, or threat.

[11] Against that background, we turn to examine the appellant's comment, made after the termination of the interview. The appellant had been formally cautioned and charged. The tape-recorder had been switched off. The appellant then asked what was happening to him. The police officer advised him that he would be kept in custody until Monday morning, when he would appear in Aberdeen sheriff court. The decision to keep the appellant in custody cannot be criticised in view of (i) the evidence against the appellant, including the complainer's statement; a witness who spoke to receiving a telephone call from the complainer saying that the appellant would not let her leave the house; and a witness (LA, the complainer in Charge 3, ultimately not led by the Crown at the trial, in view of her age and the appellant's statements to the police) who said that the appellant told her that he had poked the complainer; (ii) a further charge against the appellant with supporting evidence relating to sending inter alia sexually explicit text messages to another female complainer namely LA aged 13; (iii) the appellant's age and his previous convictions, including the breach of the peace with a sexual aggravation and the two breaches of the notification requirements; and (iv) the fact that the appellant had been placed on probation on 12 March 2009 in respect of that breach of the peace only 5 days before the alleged offence on 17 March 2009. It was on being given the practical information about what would happen next, in response to his own request for that information, that the appellant spontaneously made the comment "I poked her". The information could scarcely have been withheld from him by the police officer, as the appellant was entitled to know what was going to happen next.

[12] Having taken into account all the circumstances of this case, we consider that the appellant's comment was voluntary. The interview was over; the tapes were switched off; the appellant had been formally cautioned and charged; no particular vulnerability on his part can, in our view, be identified (contrast with R v Cherie McGovern, cit sup); no questioning or interrogation sought to provoke the comment (cf the observations in Gilmour v HM Advocate, cit sup; Mullen v HM Advocate, cit sup); no pressure or inducement was used by any police officer. The right enshrined in Salduz v Turkey cit sup was not, in our opinion, engaged.

[13] In the result, the comment "I poked her" was in our view admissible, and should not be excised from the evidence.

[14] As for the voluntary statement, the same considerations apply, but a fortiori. The taking of the voluntary statement did not occur until about 13.45 pm, leaving a greater period of time between the termination of the interview and the voluntary statement. The officers taking the statement were unconnected with the inquiry. They asked the appellant if he wished to consult a solicitor before making any statement to them. They also asked him if he wished a solicitor to be present when he was making any such statement. The appellant answered both questions in the negative. Thereafter the officers asked no questions, but simply invited the appellant to tell them what he wanted to tell them. In these circumstances, the right articulated in Salduz and Cadder was not in our opinion engaged. Further, in view of the passage of time between the interview and the voluntary statement, and the circumstances leading to the giving of the voluntary statement, we do not consider that the latter was in any way tainted by the interview.

[15] Counsel for the appellant submitted that if the court were to take the view that the protection offered by the common law was greater than that offered by the ECHR, then the appellant was entitled to rely upon the common law. However we have been unable to identify anything in the sequence of events which could be categorised as unfair or oppressive at common law, such that either the comment or the voluntary statement should be ruled inadmissible. As noted in paragraph [11] above, no criticism can be made of the decision to keep the appellant in custody over the weekend, nor of the fact that the appellant was given practical information about what was going to happen to him. The course of action subsequently adopted by the police officers (advising the appellant to say nothing more after he had made the comment "I poked her", arranging for independent officers to take a voluntary statement if the appellant wished to give one, and those independent officers offering the appellant access to a solicitor before he gave the voluntary statement) was in accordance with regular and proper practice: cf Hartley v HM Advocate, 1979 SLT 26. It is noteworthy that no objection based on unfairness at common law was raised during the trial.

Waiver

[16] If, contrary to the view which we have reached, the comment and voluntary statement were considered not to be severable from the police interview, and therefore to engage the Salduz right, we accept that the evidence relating to the comment "I poked her" would require to be excised. However in relation to the voluntary statement, even if it were to be assumed (contrary to our view) that Salduz and Cadder applied, we consider that the appellant did indeed waive his right to a solicitor. As counsel for the appellant correctly conceded during submissions, it is not necessary to show that the appellant received legal advice in order to achieve an effective waiver: McGowan v B, cit sup, Lord Hope at paragraph 46, Lord Brown at paragraphs 57 to 59, Lord Dyson at paragraph 70, and Lord Hamilton at paragraphs 91 and 94; also Lord Hope at paragraph 28 of Jude v HM Advocate, cit sup. Nor, as the law currently stands, is it necessary to establish why the appellant waived his right: McGowan, Lord Hope at paragraphs 48 to 50, and Lord Brown at paragraph 59; also Lord Hope at paragraph 29 of Jude. Finally, none of the particular vulnerabilities referred to in McGowan in the context of waiver are identifiable in this case: see McGowan, Lord Hope at paragraph 49, Lord Dyson at paragraph 70, Lord Hamilton at paragraph 94, and Lord Kerr at paragraph 127(i). The minimum guarantees required for a valid waiver as defined by Lord Hope (with whom the majority agreed) in paragraph 46 of McGowan are as follows:

" ... that [the appellant] has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily."

On the information before us, those conditions were satisfied. Accordingly it is our view that the appellant cannot seek to rely upon the Salduz right in relation to the voluntary statement.

Decision

[17] For the reasons given above, Ground of Appeal 5 is refused. The remaining Grounds of Appeal which have not yet been dealt with (namely Grounds of Appeal 1, 2 and 3) are continued to a date to be fixed.