Appellant: C M Mitchell; Paterson Bell (for Martin & Co, Ayr)

Respondent: I McSporran AD; the Crown Agent

12 January 2012

[1] The appellant is charged at Ayr Sheriff Court with assaulting a complainer by the name of L, at a local farm on 2 March 2009. He first appeared at court on 20 April 2010. The appellant has raised an objection to the admissibility of evidence of certain statements which he is alleged to have made in a police car as he was being transported from his home to the police station on 3 March 2009. A hearing took place before the sheriff on 24 October 2011; the delay being caused because parties were awaiting certain decisions of the United Kingdom Supreme Court.

[2] The sheriff found that the police had traced the appellant to his home and had been admitted by his mother. They found the appellant and immediately detained him, in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995, for the offence of attempted rape, relating to the incident which led to the charge ultimately proffered. The appellant was cautioned in the usual way. The appellant said that he thought that he was being detained because there was a fine or a warrant outstanding. He was told that it was about a serious matter. He was handcuffed and placed in the police car for the short journey to the police station. According to the evidence of the Detective Sergeant, in order to ensure that the appellant knew that he had been detained and why, he had asked him: "Do you understand you are being detained under Section 14? And do you understand what has happened so far?" The appellant had then said that he had been with a girl called L. He was told by the Detective Sergeant to say nothing more. A variant of this account was given by the accompanying Detective Constable, who said that the question asked had been whether the appellant was quite sure about why he had been detained. The appellant had said that it was something to do with a girl called L.

The objection was taken, in terms of the line of authorities from Salduz v Turkey [2008] EHRR 19 through Cadder v HM Advocate 2011 SC (UKSC) 13 to Ambrose v Harris 2011 SLT 1005, that the statement made by the appellant was inadmissible because it was in response to questioning after a suspect had been detained, and thus had had his movement curtailed. It was accepted that the essence of the question to be answered by this court fell to be determined according to whether what had gone on in the car amounted to "interrogation" in a European Convention sense. Reference was made in particular to the dictum of Lord Hope in Ambrose v Harris (supra) at paragraph 65.

[3] The law governing the admissibility of statements made by suspects is that, as a generality, a suspect who is detained outwith a police station cannot be questioned ("interrogated") about the alleged offence without being afforded a right of access to a lawyer. It is not disputed that no such access was afforded here. However, it is not the law that statements made to the police are rendered inadmissible where they are made following upon questions unrelated to the offence but concerning, for example, the suspect's physical or mental wellbeing, in advance of affording him that right. There must be many situations where asking such questions is important to ensure the fairness of the proceedings. That is what, according to both versions of events spoken to by the police, was attempted here. Although he had been detained, the appellant was not being questioned about the offence but about whether he understood what he was being detained for; that being an essential part of fairness in the procedure of detention. The appellant's reply related to the merits of the allegation, but that cannot reasonably be seen as a response to the question asked or something which might reasonably have been anticipated by the police.

[4] In essence, what occurred here was a spontaneous statement following upon a procedural question. In these circumstances, the appellant's right to a fair trial, and in particular his right of silence and privilege against self incrimination, cannot be said to have been infringed on the basis of either version of events spoken to by the two officers. In these circumstances, the appeal must be refused. It will, of course, be a matter for the sheriff to direct the jury on the effect of accepting the evidence of either police officer relative to the incriminatory nature of what was said.