APPEAL COURT, HIGH COURT OF JUSTICIARY
VERSION FIVE	[2013] HCJAC 13
Lord Eassie Lord Brailsford Lord Philip	Appeal No: XC167/13 OPINION OF THE COURT delivered by LORD PHILIP in Appeal in Terms of Section 74 of the Criminal Procedure (Scotland) Act 1995 by ROSS DUNCAN PAUL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: J MacDonald, Advocate; Clyde Defence Lawyers, Clydebank

Respondent: A Edwards; Crown Agent

20 August 2013

[1] This is an appeal under section 74 of the Criminal Procedure (Scotland) Act 1995 against a decision of the sheriff at Dumbarton, made at a continued first diet, in relation to the admissibility of statements made by the appellant Ross Duncan Paul. The statements were made during the course of a police interview conducted under tape recorded conditions at Dumbarton Police Office on 12 May 2012.

[2] The appellant was subsequently charged on indictment that:

"on 11 May 2012 at 15B, Waulkingmill Road, Clydebank you ROSS DUNCAN PAUL did assault Gary Smith, c/o Strathclyde Police, Clydebank and did stab him on the body with a knife or similar instrument to his severe injury;

you ROSS DUNCAN PAUL did commit this offence while on bail, having been granted bail on 13 April 2011 at Dumbarton Sheriff Court"

[3] A Minute of Notice in terms of section 72(1) of the 1995 Act was lodged setting out the basis of the appellant's challenge to the admissibility of the statements. The relevant part was in the following terms:

"........ (i) That the respondent intends to rely upon evidence of statements allegedly made by the Minuter to Detective Constables Ian Evans and Martin Davies during the course of an interview under caution carried out under tape recorded conditions at Dumbarton Police Office on 12^th May, 2012.

(ii) That at the time the Police interview was undertaken the Minuter was detained at Dumbarton Police Office under Section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of assaulting Gary Smith.

(iii) That at the outset of the interview, DC Ian Evans confirmed with the minuter that he had been afforded his rights to have a private consultation with a Solicitor prior to being interviewed or at any other time, but that the Minuter had before the commencement of the interview waived his rights to a private consultation. DC Evans advised the Minuter, however, that if at any time during the course of the interview he wished to have a private consultation with a Solicitor, arrangements would be made for him to have such a private consultation.

(iv) That in the course of the interview, the Minuter sought on numerous occasions to claim his right to a private consultation before proceeding further with the interview. Notwithstanding these requests, DC Evans and his colleague continued questioning the Minuter in an overbearing and hostile interrogation.

(v) That in due course DC Evans, in the face of the Minuter's emphatic demand to have a private consultation with a Solicitor, temporarily brought the interview to a halt for the purpose of arranging a private consultation as requested. In the course of the five minutes during which the tape was turned off, DC Evans did not arrange the private consultation as had been requested. Instead, he and his colleague resorted to further bullying and harassment of the Minuter to the point where the Minuter no longer insisted upon the private consultation which he had emphatically demanded immediately prior to the halting of the interview.

(vi) That DC Evans did not make a written record to evidence the Minuter's purported change of mind and waiver of his right to a private consultation with a Solicitor during the five minute intermission between the recording of the Police Interview.

(vii) That after the resumption of the interview the Minuter made statements of an incriminatory nature.

(viii) That the Minuter was entitled to have all questioning stopped from the moment he requested a lawyer, and that all subsequent statements made by him in response to Police questioning are inadmissible given the failure on the part of the Police to afford the Minuter his rights to a private legal consultation before any further questioning took place.

(ix) That further and in addition to the objection described above, the interview conducted by DC Evans and DC Davies is inadmissible on grounds of its unfairness. It is clear from a reading of the transcript of the interview, Crown Production number 6 and the audio recording of the interview, Crown Label 1, that DC Evans has, together with his colleague DC Davies, gone beyond the bounds of proper questioning of a suspect and, in particular at pages 20-24 of the transcript, the Officers have resorted to bullying and hostile interrogation, accusing the Minuter of lying. It is further tainted by unfairness in that particular questions put to the Minuter had in their premise no basis in statements made by other witnesses as was claimed by them when asking questions. In particular it was suggested to the Minuter by DC Evans and his colleague that he may have done something to the complainer because he (the Minuter) was getting a "bleaching" (ie. being assaulted) by a number of assailants. There is no basis for any such suggestion in any of the witness statements disclosed by the Crown to the Defence, the clear inference being that the Police were seeking to elicit an incriminatory statement that the Minuter had stabbed the complainer in an act of self-defence.

(x) That the conduct of the Police interview was accordingly unfair and breached the Minuter's statutory right under Section 15A of the Criminal Procedure (Scotland) Act 1995, and that as a consequence all or part of the evidence of the Police interview is rendered inadmissible at the Minuter's trial."

[4] The sheriff heard evidence and submissions in respect of the minute on 15 March 2013. At the conclusion of the hearing he sustained the minute to the extent of excluding as inadmissible evidence of that part of the police interview from the words "Stop it" where they occurred on line 12 of page 20 of the transcript of the interview to the temporary cessation of the interview at 4.20 am recorded on page 24 of the transcript. Quoad ultra he refused the minute on the view that the terms of the interview up to line 11 of page 20 of the transcript were unobjectionable and that the terms of the resumed interview from 4.25 am until its conclusion at 4.45 am (pages 24 to 40 of the transcript) were also unobjectionable. Against that decision, the appellant sought, and was granted, leave to appeal. The decision to exclude part of the interview was not appealed by the Crown.

[5] At the hearing, evidence was led from Detective Constables Ian Evans and Martin Davies, the officers who had conducted the interviews, and from the appellant himself. In his report the sheriff informs us that the appellant had been detained at his own home by other officers at about 9.50 pm on the evening of 11 May. He was not immediately taken to a police office but was instead taken to the Accident and Emergency Department of an unidentified hospital, where he received treatment for injuries to his mouth and to his hand which he had sustained earlier in the day, before his involvement with the police. The injury to his mouth was treated with stitches and a fractured knuckle was bandaged. Thereafter the appellant was removed to Dumbarton Police Office, arriving there about 1.25 am on 12 May. The various formalities, including completion of the solicitor access recording form (SARF) were gone through. The appellant confirmed that he wished his solicitor, Mr Lafferty, to be informed of his detention, but that he did not wish a private consultation before being questioned by police officers. Thereafter he was placed in a cell until his interview by Detective Constables Evans and Davies began at 3.55 am. At the outset he was cautioned and confirmed that he understood the caution, and again confirmed that he did not wish to have a consultation with his solicitor before the interview began. The interview was initially conducted by DC Evans. The sheriff records that the appellant's responses to the questions put which concerned his movements during the previous day were at best vague, his most common answer being that he could not remember. It appeared, however, that having come home from his work as a greenkeeper at a local golf course in the mid‑afternoon, he had then gone out and acquired a bottle of Buckfast wine which he had started drinking before going to the home of a friend called David Morrison in Waulkingmill Road. He remembered seeing the complainer, Gary Smith, at Morrison's House and that he (the appellant) had left the house. He thought that his reason for leaving was that he was subject to a bail condition preventing him from having contact with Smith.

[6] After about 18 to 20 minutes into the interview Detective Constable Davies became involved. The appellant had been asked, by DC Evans, why, if he remembered walking home from the party at Morrison's house he could not remember what had happened at the party, to which he had replied: "Ah don't know". At that point DC Davies intervened to say "Stop it" in a sharp tone of voice. The appellant's response to DC Davies was "Stop what?" to which DC Davies replied "Stop it. Stop. You're sitting there telling a pack o' lies". There then followed what can best be described as an argument between the appellant and DC Davies in which voices were raised, until after about 45 seconds to a minute the appellant said "Phone my lawyer". DC Davies in his evidence described his intervention as a technique which he used to challenge interviewees whom he believed were being less than truthful. He denied that it was bullying, or that his intervention was part of a "good cop/bad cop" technique. He accepted that as soon as the appellant had asked for his lawyer to be contacted, he should have refrained from asking further questions, but explained that he had not heard the appellant's first request that his lawyer be telephoned. DC Evans described this passage of the interview having got out of control, and also said that he might have missed the appellant's first request that his lawyer be telephoned. The sheriff agreed with DC Evans' description of the interview but accepted the officers' evidence that they might have missed the appellant's first request, as their voices were raised by the time those words were uttered. Thereafter from pages 22 to 24 of the transcript the appellant requested a further five times that his lawyer be contacted and both officers accepted that the questioning should not have gone on.

[7] The relevant passage of the transcript was in the following terms:

(It should be explained that DC1 represents Detective Constable Evans and DC2 represents Detective Constable Davies).

"DC1 Ok, five ten minutes, twenty minutes, you can remember walking home. So how can you naw remember what happened in the party.

SUSPECT Ah don't know.

DC2 Stop it.

SUSPECT Stop what?

DC2 Stop it. You're sitting there telling a pack o' lies.

SUSPECT How am I sitting there telling a pack o' lies?

DC2 Naw, I asked you the question. I,

SUSPECT And I asked how am I sitting telling a pack o' lies.

DC2 asked you the question.

SUSPECT How am, how am I sitting there telling a pack o' lies.

DC2 Cause you're sitting there telling a pack o' lies.

SUSPECT You think so aye?

DC2 You can conveniently remember right up to the party and then you can remember right efter the party but you cannae remember the party. You're sitting there full of injuries there's a boy in the hospital wi' a stab wound that you've got previous wi,

SUSPECT What's that got tae dae wi' it?

DC2 that you don't get on with.

SUSPECT So it was me that done it, just cause ah've got previous wi' `im.

DC2 He has named you, he has named you.

SUSPECT He has named me?

DC2 He's gave a, he's gave a statement saying it was you.

SUSPECT Aye,

DC2 Yes.

SUSPECT well he's full o'shite.

DC2 Yes.

SUSPECT An he always has been.

DC2 Right so that's,

SUSPECT You can blame me if you fuckin want, ah don't give a fuck.

DC2 Am naw blame, am naw blamin' ye, am naw blaming you

SUSPECT It was you you're telling a pack o' lies oh am naw blaming you, yer naw blaimin me.

DC2 Am naw blaming you, he is.

SUSPECT Aye well he's full o'shite.

DC2 He has gave a statement, right

SUSPECT .......................

DC2 somethin's happened tonight at that party.

SUSPECT Phone ma lawyer.

DC2 Somethin's happened tonight at that party. Tell us what's happened,

SUSPECT Fuck all to do wi' me.

DC2 Right tell us what happened.

SUSPECT No comment, I want ma lawyer. If your gonnie sit and fuckin' shout at me like that I want lawyers and that.....

DC2 If you want a lawyer you can get a lawyer.

SUSPECT Ah want a lawyer here.

DC2 Or we can talk about this what happened at the party.

SUSPECT Ah just, I was tryin' to be fuckin' nice and sit and talk about it, til youse are sayin'.

DC2 Well you're sitting here, you're sitting there telling us a pack o' lies.

SUSPECT And then ma lawyer sits and tells me to say no comment, naw that am tryin' tae fuckin'....

DC2 But you're telling us a pack o' lies.

SUSPECT Am naw fuckin' telling you a pack o' lies am sitting here tellin' you the fuckin' truth.

DC1 Stop swearin'.

DC2 You're sitting there wi' a bunch o' injuries.

SUSPECT I'm sitting here wi' a bunch o' injuries....

DC1 Listen to me, listen to me. There's always two sides to a story. You're back's against the wa' here. There's two sides to a story if he started on you the night, this is the time where you tell us, do you understand this is the time you get your side o' the story across before it goes to Court, because this will go to Court. If it goes to court yip, you've got a job, you're a young man and you don't need this ower yer heid. If he started on you, you need to tell us. You need to tell us what's happened at that party. This is really important because you're sitting there wi' a load of injuries did he start on you, because he's sayin' it's the other way aboot. So you need to tell us, this is your opportunity. Do you understand?

SUSPECT I want ma lawyer to be here, I'll speak to him first.

DC1 That's absolutely fine and we'll arrange that. As you say I hope you appreciate all we're basically sayin' to you is the evidence we have is the fact where one, we have a person who has been stabbed is sayin' to us that you did it. Basically we're only asking you what happened and what we're basically getting as is there's a gap in your memory that seems to be between going to David's and leaving David's which as you can see, I think you're old enough and I mean and mature enough to appreciate from ma point of view it looks a bit suspect that you cannae seem to remember what actually happened in that party and if somebody like a jury or whatever if it goes to court and the jury listened to that and says, oh conveniently cannae remember that, that's fine, ok. You think how a jury would look at that just think about it. But what am gonnie do noo is if you want a contact made wi' a lawyer I'm gonnie stop the tape and I'll do that. Is that what you want?

SUSPECT Aye.

DC1 Gonnie take your hand away fae yer mouth.

SUSPECT Its fuckin' sore man.

DC1 I know, I can see that and that's why we've continually argued,

DC2 That's why, that's why we're getting annoyed because you're injured, you're badly injured, you've been tae hospital tonight. Something's happened at that party, let me tell you how it looks to us. That you're sayin' a cannae remember, so if you're sayin you cannae remember, can you remember stabbing' him?

SUSPECT Ah didnae stab him.

DC2 Right ok, well tell me, you obviously can remember.

SUSPECT ...........ah don't want to say.

DC2 If you're adamant you didnae stab him.

DC1 Why do you know want to say?

SUSPECT Ah don't know.

DC1 Why Ross, I don't understand why you don't want to say where could, with, you're getting accused o' stabbing somebody and you've now openly said you didnae stab em, ah can remember, ah didnae stab him why do you naw want tae tell us so we can go nd sort out the stories we've told if they are as you've right, as you say they're a pack o' lies, we investigate that pack o' lies,

SUSPECT Naw, I want ma lawyer here.

DC1 Right, just stop it, just stop and get a, a, a lawyer contacted. Em this is Detective Constable Ian Evans I am now temporarily stopping the interview with Ross Paul eh he wants a Solicitor contacted regarding his detention. The time is 04:20 hours."

[8] When the interview was stopped at 4.20 am the tape was switched off. Both officers said that as they were about to leave the interview room the appellant asked how long it would take for his lawyer to get to the police office. The officers told him that they had no way of knowing, and said that the appellant then said that he wanted to continue with the interview, and no longer wished his lawyer called out. The appellant's evidence was that as soon as the tape was switched off both officers started shouting at him, and threatening him, and telling him that he was not having a lawyer.

[9] When the interview resumed at 4.25 am the appellant was again cautioned and confirmed that he understood the caution. He also agreed that as the officers were leaving the room he indicated that he did not want his solicitor contacted. He accepted in evidence that that exchange had taken place but denied that it was a true reflection of his wishes. The sheriff tells us that he found the appellant's evidence on this point unsatisfactory and inconsistent and preferred that of the police officers. He accepted that the appellant, when told by the police that they did not know how long it would take for his solicitor to get to the police office, changed his mind and indicated to the officers that he simply wished the interview to continue. After the interview recommenced the appellant told the police that he and the complainer had in fact got into a fight in Morrison's house and that during that fight the appellant had sustained injuries to his lip, hand and forehead. He denied stabbing the complainer, telling the officers that when he left Morrison's flat the complainer was standing apparently uninjured. The appellant had seen no blood and had seen no one else stab the complainer.

[10] The sheriff held that the appellant's fitness for interview was not in question and rejected submissions that he was in any way vulnerable to pressure. He found that the appellant had changed his mind and withdrawn his request for the presence of his solicitor of his own free will, and was not put under undue pressure to do so. He was of the view that the appellant might have been motivated to do so because he did not want to delay the interview for an unknown period. He held that the resumed interview was unobjectionable in that it contained no improper or unfair questioning, and that the failure to fill in the SARF form did not vitiate the interview. He did however hold, as conceded by the Crown, that the passage of the interview from page 20 to 24 was inadmissible from the point at which DC Davies intervened. As we understand the sheriff's report at page 21, he did so on the ground that the questioning fell within the description of interrogation and cross-examination set out by the Lord Justice General in Lord Advocate's Reference (Number 1 of 1983), 1984 JC 52, "improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will."

[11] Two grounds of appeal were advanced on behalf of the appellant. The first was that the sheriff erred in finding that the appellant's purported waiver of his right to a private legal consultation during the break in the interview at 4.20 am was genuine and informed, in respect that he had failed to take proper account of the whole circumstances of the case. In the 24 hours immediately preceding the interview, the appellant, who was 17 years old, had undertaken a day's physical work as a greenkeeper between 6.00 am and 2.00 pm. He had gone out with his friends shortly thereafter and consumed a significant amount of alcohol during the course of the afternoon and evening. He was detained by police shortly after his return home at 9.50 pm. He was immediately taken to hospital for treatment and arrived at the police office to have his detention confirmed at 1.25 am. He was placed in a cell before being taken for questioning at 3.55 am. He was subjected to a hostile and bullying interview technique. All of these factors served to increase his vulnerability to pressure, tacit or overt, to provide answers to questions which he would not otherwise have wished to answer voluntarily, and to continue with the interview. He requested the presence of a solicitor on no fewer than six occasions before the police stopped the interview. His decision to waive his request during the break was made after he enquired as to how long it would take for a lawyer to be summoned. The obvious inference was that his decision to continue without legal advice had more to do with concern about possible delay than to a genuine, informed and unequivocal decision. The reason for the waiver appeared to have been pressure of time or convenience. It could not be considered to be truly voluntary.

[12] Counsel for the appellant also argued that the officers had provided inadequate and inconsistent explanations as to why section 5 of the SARF form had not been completed in relation to the circumstances in which the accused had changed his mind. The fact that the accused did change his mind did not expunge all that had gone before and the likely effect on the accused of the improper questioning.

[13] The second ground of appeal was to the effect that the interview as a whole was unfair. Counsel submitted that the appellant had been subjected to cross‑examination and interrogation and that the interview was characterised by a bullying and hostile approach which had the effect of breaking his will and extracting statements from him of an incriminating nature. The sheriff was wrong to take the view that the break had eliminated the effect of the improper questioning immediately prior to it. Moreover, a number of questions were put to the accused on a false premise. The officers alleged that they had been told that the appellant himself had been assaulted by a number of assailants. There was no basis for any such suggestion in any of the witness statements available to the police and the inference was that the officers were seeking to elicit an incriminatory statement on the basis that the appellant was acting in self-defence. Moreover the sheriff took no account whatsoever of the various factors already referred to as increasing the appellant's vulnerability.

Discussion

[14] It is not in dispute that the questioning in the passage of the transcript between pages 20 and 24 fell within the description of interrogation and cross-examination set out by the Lord Justice General, Lord Emslie, in Lord Advocate's Reference (Number 1) of 1983, "improper forms of questioning tainted with an element of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will". The effect of the sheriff's decision was that the subsequent five minute break during which the appellant changed his mind in relation to his request for legal assistance removed the effect of the unfairness of that questioning. We are unable to support that conclusion. The questioning under consideration had sufficient effect on the appellant to lead him to recognise the need for the presence of a solicitor. It is accepted, as we understand it, that he was indeed in need of the presence of a solicitor at that point. It was his right to demand it. The officers however persisted in their questioning, not only in the unfair way described by Lord  Emslie, but also in a way which demonstrated an intent to deny the appellant his right, or at least to persuade him to waive it. The fact that during that part of the interview the appellant was the subject of pressure not to seek the services of his solicitor is in our view an important factor in the light of which the appellant's subsequent change of mind requires to be considered.

[15] The sheriff says that the reason for the appellant's change of mind might have been that he wanted to get the interview over with. No other reason for the change of mind has been suggested, and it is difficult to think of any other reason why the appellant took the course he did. The inference must be that he allowed his desire to get the interview over with to override his repeatedly expressed wish for legal assistance in a situation in which he was in clear need of legal assistance. In our view that is a situation in which it cannot be said that his waiver of his request for legal assistance was voluntary, informed and unequivocal.

[16] We also take the view that the sheriff erred in failing to place any weight on the circumstances in which the appellant found himself at the time of interview. He was 17 years of age and had been continuously awake for a period of approximately 22 hours, during which he had done a day's physical work, had had a substantial amount to drink, had been injured, and had been lodged in a cell for approximately 2 hours until 3.55 am when the interview began. In our view these factors at least raised a question as to the appellant's vulnerability to pressure and therefore fell to be taken into account in determining the fairness of the interview as a whole.

[17] The appellant also relied on the fact that DC Evans accepted that after the five minute break he had put to the appellant that he had been attacked by others, although he had not been given evidence to that effect by witnesses. It is evident from the terms of what the officer said that, in forcefully putting to the appellant that he had been attacked by others, he was seeking to obtain from him a statement to the effect that he had retaliated. The sheriff found nothing unfair in this, taking the view that the officer was giving the appellant the opportunity to advance such a scenario as an explanation for his injuries. While this factor alone might not have rendered the interview unfair, the officer was in our view at risk of engaging in a deception of the appellant, and the tactic did nothing to mitigate the overall unfairness.

[18] Having regard to all the factors we have set out we are unable to conclude that the unfairness of the first part of the interview was cured or purged by the five minute break afforded to the appellant. We are therefore of the view that the whole of the interview from page 20 to the end must be regarded as unfair and its contents as inadmissible. For these reasons the appeal is allowed.