Appellant:  Adam, advocate;  George Mathers & Co, Aberdeen

Respondent:  Brown QC, advocate depute

25 June 2014

Introduction

[1]        On 24 August 2012, the appellant was convicted by the jury at Aberdeen Sheriff Court of two charges; one was a charge  of public indecency and one was of a contravention of section 35 of the Sexual Offences Scotland Act 2009.

[2]        Both charges involved the appellant having exposed himself to complainers, in a lane close to their respective homes.  The date in the first charge was 16 September 2010 and the date in the second charge was 15 January 2011.

[3]        The appellant was sentenced by the imposition of a probation order for a period of three years.

Minutes challenging admissibility of evidence

[4]        Two minutes were lodged in which the appellant challenged the admissibility of certain Crown evidence.  They included a challenge to the evidence of his police interview on 23 September 2010 and to his reply to caution and charge.  The challenge was based on three factors.  First, that the appellant suffered from an identity disorder which rendered him suggestible and compliant.  Secondly, that the interview took place in the early hours of the morning when he was very tired and had requested but was refused regular breaks as a result of all of which he was unfit to be interviewed.  Thirdly, he was subject to threats and inducement during the interview. 

[5]        The minute challenging the police interview called, prior to trial, for an evidential hearing before Sheriff Garden.  He heard evidence over five days following which he found that the interview was fair and that the evidence of it was, accordingly, admissible.  In his report for this court he explains, between paragraphs 11 and 17, how and why he reached that conclusion.  Put shortly, he found the police witnesses fair minded, did not accept that they threatened or intimidated the appellant in any way at all  or that the length of the interview without breaks was unreasonable or unfair.  He took account of defence evidence led from a psychologist, Dr Davidson.  Whilst the witness had analysed the appellant’s personality as being complex and being one which could usefully be considered as falling within “the umbrella notion of an identity disorder” (a state which involved him being too indecisive to settle on a central notion of self and aroused anxiety in him), he had also assessed him as having a considerable level of obvious intelligence and did not think that, at the time of the interview, he required to be categorised as vulnerable. 

Evidence of the appellant’s police interview

[6]        Evidence of the appellant’s police interview was, accordingly, led at the subsequent trial, which was before a different sheriff.  Towards the end of the appellant’s police interview during which, up until that point, he had consistently denied any involvement in the matters alleged, at page 75 of the transcript, when  asked whether there was anything else he wanted to say, he said:

“I’ll give you a confession.  I was sitting at the back door with no trousers on and they walked past.”

He then added some other details.  Prior thereto, he had been consistent in denying that he was the person responsible for the indecent acts that were alleged to have taken place.  The interviewing police officer (PC Stuart Fisher) was very surprised at that change of stance by the appellant.

 
[7]       The following day, the appellant gave evidence.  At page 6 of the transcript, in examination in chief, he was asked:

“Did you feel any particular pressure as far as being interviewed by the police officer was concerned?”

The question was objected to by the procurator fiscal depute and the sheriff observed that it was “blatant leading”.

[8]        At page 7 the examination in chief continued with the question:

“As far as the interview process was concerned, how did you feel throughout the interview process?” 

The appellant answered:

“Well at first it didn’t seem to be really that bad.  Everything seemed to be okay.  Ehm, the tone was generally quite relaxed.  Ehm, they asked … eh, PC Fisher asked a question and I had , eh, responded, ehm, following legal advice, ehm, by saying I’ve nothing to say.  Ehm, and it went on for a while, but then the tone changed a bit, eh, from PC Fisher.  Ehm, he became a bit …”. 

At that point, the procurator fiscal objected to the line of evidence and the sheriff heard argument outwith the presence of the jury.  She submitted that the line was a regurgitation of the defence minute which had already been heard and ruled on by Sheriff Garden.  Counsel’s submission in response was to the effect that the ruling did not prevent the matter of fairness being put before the jury for their thoughts as to whether they felt there was an unfairness or that there was anything within the interview process which could cast doubt upon the appellant’s responses.  He explained that the purpose of the line of evidence was that he was trying to explore the appellant’s feelings throughout the interview and why his change in attitude came about.  No authorities were referred to.

[9]        After an adjournment, the trial sheriff, after having heard legal argument but without having been referred to or, it seems, consulting any authorities, sustained the objection.  He ruled that counsel was not entitled to seek to explore how the appellant felt throughout the interview because the matter had been fully canvassed at the hearing before Sheriff Garden.  He considered that counsel was trying to re-open the issue which had already been determined.  Further, the matter of pressure being put on the appellant had not been fully canvassed with PC Fisher and was not canvassed at all with the other police officer who was present at the interview. 

[10]      The jury returned to court and the trial sheriff directed them in the following terms[1]:

“Now ladies and gentlemen before we resume questioning I am going to give you a direction to disregard the accused’s answers regarding him how he felt about the interview.”

[11]      The appellant’s examination-in-chief then resumed.  At page 9 of the transcript, he was asked:

“Why did you go from the point of denial to suddenly volunteering a confession?”

and he answered:  “I felt I had to, ehm, because, eh …”  He was then asked:  “ … what was your thought process as far as suddenly volunteering to confess?” and he answered:  “ I don’t know how to answer the question without, ehm, feeling pressured.”

[12]      At page 12 of the transcript, still in examination–in–chief, he was asked:  “As far as the confession that you gave, was that a true confession?” and he answered:  “It wasn’t, no.”  He was then asked:

“And what is your position today as far as the allegations in relation to the first incident is concerned?”

and, after having explained that he did not commit the crimes alleged, he added (at page 13):

“I apologise for lying to the police in the interview, but I had to tell them what they wanted to hear; what they told me to say.”

In cross examination, he was asked (page 21):  “So, you’re effectively saying that the police have put words into your mouth?” and he replied:

“They had given me, ehm, facts about the allegation on which I had to formally into a false confession.”

Evidence of Dr Davidson

[13]      Dr Davidson was the chartered psychologist who had examined the appellant prior to the hearing before Sheriff Garden.  He also gave evidence at the trial.  The trial sheriff’s report indicates that his evidence appears to have been very much to the same effect as that which was given at the earlier hearing before Sheriff Garden.  He had assessed the appellant as having an identity disorder and he said that a person who had such a disorder could be led into making a confession as a form of compliance.  He also gave evidence about what he had been told by the appellant about, for instance, him feeling tired during the interview and having only a fragmented memory of what had occurred. 

The Charge to the Jury

[14]      In his charge, the sheriff referred to the evidence of the appellant’s police interview at page 27 and said:

“Before you could take account of what the accused said, you have to decide if he did say anything and if it’s been accurately recorded, and if it was fairly obtained.

Now, there has been no challenge on any of these grounds, so you may easily decide that what was said was part of the evidence in this case.”

and he then, under reference to the appellant having said that he was lying to the police when making admissions , said:

“If you believe he lied to the police, disregard those parts of what he said.  If you disbelieve his evidence that he lied to the police, in other words, if you think he told the police the truth, all he said is part of the evidence in this case.”

[15]      The sheriff did not refer the jury back to the appellant’s evidence about feeling pressured or about feeling that he had to tell the police what they wanted to hear or direct them, in the light of that evidence, to consider what weight, if any, to give to his admissions at interview. 

[16]      At pages 21-23 of the charge, the sheriff directed the jury regarding the need for caution in relation to the identification evidence under reference, in particular, to the failure of the first complainer to pick out the appellant when shown photographs and certain concessions made by her, in cross examination, and to the failure of the other complainer to pick out the appellant in a VIPER parade.  He also cautioned them regarding dock identification (which had been relied on), given the risk of an accused’s presence in the dock putting them at risk of being wrongly identified. 

[17]      Between pages 34 and 38, the sheriff dealt with the evidence given by Dr Davidson.  He referred to his diagnosis of identity disorder , to his having suggested that the appellant might agree with the police as a form of compliance, and that a person with an identity disorder might, when under stress, be prepared to agree to allegations.  He directed the jury at page 35:

“Depending  on what you think of it, Dr Davidson’s evidence may have a bearing on how you view the evidence of what was said at the interview of Mr Allan by Mr Allan….”. 

and

“… Dr Davidson’s function is to inform you generally about what the effects of identity disorder may be on a person’s ability to recall and recount matters.  It’s to inform you generally about the susceptibilities of persons exposed to the sort of conduct on the part of the police, said by Mr Allan to have taken place in this case and the susceptibilities of being influenced or manipulated.  It’s to inform you generally about the capacities and capabilities , or otherwise, of those with the condition: identity disorder.  And it’s to inform you generally about his examination of the accused.  Also to inform you generally about his views on Mr Allan’s interviews by the police and the basis for Dr Davidson’s conclusions.”

That is, the directions about Dr Davidson’s evidence were not related to what the appellant had said about what he felt during the interview.  The stress was, perhaps unsurprisingly since Dr Davidson was an expert witness and not a witness to fact, on the generality of what he could tell the jury about identity disorders and the effect that they may have on an individual. 

The Appeal

Submissions for the appellant

[18]      The appeal, as ultimately focused, was based on the ground that the sheriff erred in sustaining the Crown objection to the line of evidence relating to how the appellant felt during the interview process.  As a result, the jury were not able properly to consider the fairness of the interview and to consider what weight, if any, to attach to the responses given by the appellant; the erroneous sustaining of the objection was compounded by the direction given to the jury by the sheriff to disregard the appellant’s evidence regarding how he felt during the interview.  As a result, the evidence which, in fact, the appellant gave about how he felt at the time was not available to the jury. 

[19]      Counsel for the appellant – who had been counsel at the trial – said that he was, once the ruling on the objection had been made, constrained in his questioning of the appellant.  That seems to be correct.  As the transcript shows, we accept that it is evident that he tried to stop the appellant talking about how he felt at the interview and did not maintain the questioning about his thought processes or follow up on the appellant saying that he told the police what they wanted to hear.  Counsel explained that, because of the ruling, he considered he could not explore the question of the appellant’s state of mind during and towards the end of the interview with the appellant or, in particular, the appellant’s position that he had simply been telling the police what he understood they wanted to hear.  That meant that, in turn, he could not fully explore with Dr Davidson the matter of the appellant’s susceptibility to pressure and the value of the statements made by the appellant during the interview.  As a result, the jury were deprived of evidence that would have been important and relevant to their consideration of what weight, if any, to give to evidence of the admissions made by the appellant during his police interview.

[20]      Reliance was placed on Platt v HMA 2004 JC 113, for a submission that where it has been determined – following challenge to the fairness of an interview – that the evidence is admissible, the judge should not direct the jury that they are bound to hold that the evidence was fairly obtained; the jury can decide for themselves what weight, if any, to give to it.  The case of Crooks v Russell 2002 SLT 221 was relied on for the same point. 

[21]      Reference was also made to the sheriff’s charge to the jury.  At page 27, the sheriff told the jury that fairness at interview was not an issue.  That was not correct.  Further, he had failed to tell the jury, as he ought to have done, that fairness was a matter for them when deciding what weight, if any, to give to the evidence of it. 

[22]      Counsel accepted that there was a sufficiency of evidence without the admissions, but the identification evidence was not certain.  He pointed to various respects in which its soundness could be called into question.  The jury’s verdict was by a majority.  His point seemed to be that it appeared highly likely that the evidence of the appellant’s confession at the interview influenced the jury in reaching their verdict.  In these circumstances, there had been a miscarriage of justice.  The Crown’s objection should not have been sustained, and matters which ought to have been able to be explored in evidence were not explored.  Although there was a legal sufficiency without the evidence of the admissions at interview, the identification  evidence was questionable and a reasonable doubt could have been raised in the minds of the jury had there been such exploration.  Further, insofar as it might be said that, notwithstanding the sustaining of the objection, the appellant gave some evidence about how he felt during the interview, the value of that was negated by the direction that the sheriff gave to the jury to disregard his answers about how he felt.  The jury would not have thought that the direction was confined to what they had already heard.  It was woolly and could be taken to cover both past and future evidence.

Submissions for the Crown

[23]      For the Crown, the advocate–depute conceded that the appellant’s submission to the effect that the objection to the line of evidence about how the appellant felt during the police interview should not have been sustained.

[24]      He did not, however, concede that a miscarriage of justice had resulted.  Material on which the appellant wished to rely regarding how he felt at the interview and the effect of his having an identity disorder had infact come out in the evidence in any event, so the jury must have well understood the point.  As the transcript showed, the appellant had been able to give the explanations that he wanted to give.

[24]      Regarding the possible effect of the sheriff’s direction to disregard the appellant’s evidence about how he felt at the interview, the advocate–depute submitted that the direction could only apply to the evidence that had already been heard.  That was the context.

Discussion and Decision

[25]      Although there was a sufficiency without the interview evidence, the Crown did rely on it.  That is not surprising.  The identification evidence was challenged for various reasons, as summarised by the sheriff in his charge and it was, no doubt, seen as helpful to the Crown case to be able also to rely on the appellant’s admissions.  It was, accordingly, important that the jury were able to approach their considerations of those admissions in the light of all the material evidence relating to them.  We are, however, satisfied that the jury were prevented from doing so. 

[26]      First, we are satisfied that the trial sheriff erred in sustaining the Crown’s objection to the line of evidence regarding how the appellant felt during the police interview.  For the reasons explained in the case of Platt, the prior ruling that the evidence of the police interview was admissible did not bar questioning at trial designed to explore the appellant’s feelings and state of mind during the interview with a view to laying the ground for inviting the jury to place little or no weight on his  admissions.

[27]      The background of the appellant’s identity disorder and the potential for a person with such a disorder being led into making a false confession, as explained by Dr Davidson, certainly laid the ground for the line to be explored.  The Crown objection was not well founded and the trial sheriff should have repelled it.  The advocate- depute’s concession was, accordingly, well made. 

[28]      Secondly, as a consequence of his erroneous approach to the appellant’s challenge to the interview evidence, the sheriff directed the jury that there was no challenge to the fairness of the police interview.  That was, however, not the position at all.  The appellant sought to challenge the fairness of the interview in accordance with the legitimate approach set out in the case of Platt. 

[29]      Thirdly, we are satisfied that, although the appellant nonetheless managed to give some evidence about how he felt, it is plain from the transcript that counsel’s questioning was very limited and we accept that Mr Adam would have sought to explore the issue in greater depth, in a way he felt constrained from doing.

[30]      Fourthly, the sheriff’s direction that the jury were to disregard the appellant’s answers regarding how he felt negated any benefit to the appellant that otherwise might have arisen from such evidence as he did manage to give about how he felt.  It was in very general terms and we are not persuaded that the jury would have understood it as being confined to what the appellant had said prior to the direction being given (not that that evidence ought to have been excluded from their considerations).  The direction was liable, accordingly, to be interpreted as requiring the jury to ignore any and all the appellant’s evidence about he felt. That was in circumstances where his explanation was that he made the admissions  not because they were true but because he felt pressured into doing so and had to say what the police wanted him to say.  If that evidence was disregarded, Dr Davidson’s evidence about the possible effects of police interview circumstances on a person with an identity disorder , even if accepted, would have been of no assistance to the appellant.

[31]      Finally, this is not a case where there can be confidence that the identification evidence would have carried the day without the addition of the evidence of the appellant’s admissions at interview, notwithstanding that there was a sufficiency in the identification evidence alone.  There were challenges to it which could have raised doubts as to its soundness.  In those circumstances, the need for the appellant to be able, in fairness to him, to lay before the jury all that he had to say about his admissions to the police, was highlighted.  He was, however, prevented from doing so. 

[32]      In all these circumstances, we are satisfied that a miscarriage of justice has occurred and we will, accordingly, quash the conviction.