For the appellant:  Moir; Gilfedder McInnes, Edinburgh

For the Crown:  Prentice QC (sol adv) AD; Crown Agent

18 June 2014

[1]        The appellant was indicted, together with two co-accused, on a charge of rape.  The case first called at a preliminary hearing on 22 October 2012.  After two further preliminary hearings, a trial diet was fixed for 22 April 2013.  Prior to this, the appellant had timeously lodged a special defence of consent and a notice of incrimination against one of his co-accused.

[2]        We were told that the appellant was originally represented by Mr Fitzpatrick, solicitor advocate, acting as “leader” and Mr Mulgrew, solicitor advocate, acting as junior.  In the course of preparing for the trial, they discussed between themselves whether a minute should be lodged objecting to the admissibility of a statement given by the appellant to police officers.  Mr Fitzpatrick decided that this was not necessary;  Mr Mulgrew did not agree with Mr Fitzpatrick but abided by his view.  However, after further discussions, Mr Fitzpatrick changed his mind and drafted a minute objecting to the admissibility of the statement by the appellant.  This minute was lodged on 10 April 2013 and intimated to the Crown, but no steps were taken at that time to move the minute.  Thereafter Mr Fitzpatrick returned his papers due to a clash of commitments, and on 15 April 2013 counsel was instructed to appear on behalf of the appellant, with Mr Mulgrew as his junior.

[3]        On the first day of the trial on 22 April 2013, but before the trial had commenced, counsel sought leave to argue the minute though late.  The advocate depute opposed this motion, although he accepted that no prejudice was caused to the Crown by the matter being raised late.

[4]        The trial judge narrates in her report to us the argument advanced before her on behalf of the appellant as follows:

“The substance of the objection to admissibility was that the police had taken the appellant to the police station late on the night on which the crime was said to have happened and had noted statements made by him. He had been treated as a witness, not as suspect and so had not been cautioned and had not been given the opportunity to have legal advice.  He had made admissions which could be incriminating.  Counsel submitted that productions 31 and 32 were respectively a statement and a piece of paper both of which contained narrations of words said to be spoken by the appellant to the police.  In production 31 the appellant indicated that he had met a girl whom he did not know in the street and that she had gone to his home with him.  There followed sexual contact consisting of kissing touching and “a blow job”.  In production 32 there was mention of kissing and a “blow job” and the words “no sex” were noted.

Counsel argued that the police should have cautioned the appellant and should have given him the opportunity to get advice from a solicitor. He was the householder of a flat in which the police had been told a sexual assault had occurred in which one of the perpetrators was the tenant of the flat. He was present at the flat within  a few hours of the report of the crime. It was unfair to ask him any questions as he was a suspect.”

[4]        The trial judge decided to refuse leave, in terms of section 79(1) of the Criminal Procedure (Scotland) Act 1995, for the preliminary issue of the admissibility of this evidence to be heard.  She summarised her reasons for doing so in her report to her as follows:

The charge against the appellant was that of rape.  He had lodged a special defence of consent, and there were amongst the productions for the case a report from which I could anticipate that the Crown would seek to lead evidence that DNA likely to come from semen belonging to the appellant was found on the complainer in her vagina and in her rectum.

It seemed to me that the evidence to which objection was sought to be taken was not the only adminicle of evidence in the case from which it could be inferred that the appellant was guilty.  As stated above there was likely to be evidence of DNA and the complainer herself was also a witness.  While it was of course for the Crown to prove its case and the existence of a special defence did not in any way negate the burden on the Crown, it seemed to me that I could take into account the fact that a special defence had been lodged.  In light of it, the appellant would not positively assert that there had been no sexual intercourse.  I ascertained from both counsel for the defence as well as the advocate depute, in the course of their submissions, that they agreed that I was entitled to have regard to the existence of the special defence. I accepted that there would be prejudice to the appellant as he apparently had made inconsistent statements as he did not admit to sexual intercourse when seen by the police that night.

I then considered the lateness of the minute.  It seemed to me that the cause which had been shown was a tactical or strategic decision taken in the course of preparation of the defence.

Having considered the reason for lateness along with the importance of the evidence to be led, I came to the view that the minute should not be heard.”

[5]        Thereafter the trial commenced.  Evidence was given by two police officers as to the circumstances leading up to the appellant making a statement to them and the terms of that statement.  We deal with this evidence in more detail below.  There were other important elements of evidence led for the Crown, including forensic evidence about the likelihood of semen found within the complainer’s vagina and in her rectum having come from the appellant, and medical evidence that the complainer had tears in the area of her vagina and a small bruise at her anus, which signs were most likely indicators of forceful intercourse but were also consistent with what the witness described as energetic sex.  The complainer was found in the street in a distressed state by three passers-by.  The appellant gave evidence and maintained his special defence of consent and his incrimination of his co-accused.  He gave evidence that the complainer consented to vaginal sexual intercourse and that he did not have anal intercourse with her.  He gave evidence that his co-accused did have anal intercourse with her.

[6]        In due course in her charge the trial judge directed the jury that the evidence about what the appellant said to the police was admissible, but that they had to consider if they thought it was fairly obtained, and if they thought not then they were entitled to give it little or no weight.

[7]        Before us, counsel made two submissions – (1) that the trial judge erred in the exercise of her discretion in refusing to hear the minute objecting to the admissibility of the evidence of the appellant’s statement to the police, and (2) that the circumstances surrounding the appellant’s statement to the police were so unfair as to render the statement inadmissible and to render the appellant’s trial unfair and resulted in a miscarriage of justice. 

The evidence about the appellant’s statement to the police
[8]        We were provided with transcripts of the evidence of PC Guy and PC Gray, who were the police officers to whom the appellant made the statement in question.  In her report to us the trial judge summarised their evidence as follows:

“In due course evidence was led from the police officers.  It was to the effect that they were instructed by a superior officer to attend at the flat which was tenanted by the appellant.  They were told that a complaint had been made that a woman had been raped by several men in the flat that night.  They were also told that one of the alleged perpetrators was of Asian origin and that his name was “Malik” and that it was his flat.  They stated that they stood by the flat in which there were no occupants, and that the appellant arrived at it.  They asked him for his name which he gave as “Ernest Radic”.  He told them that he was Slovakian and showed them his passport which gave his nationality.  They sought instructions and detective officers came to the locus and asked the appellant to attend at the police station. 

DC Guy gave evidence to the effect that he regarded the appellant as a witness.  He agreed to go to the police station.  Mr Guy knew that other police officers had been given the name ‘Malik’ for one of the perpetrators.  At the police station he found that the appellant had little or no English.  He told the police he was Slovakian and so they made arrangements to get an interpreter for that language.  It took about one hour for an interpreter to arrive.  When she arrived, the appellant, the interpreter, Mr Guy and another police officer, Mr Gray were in a room together.  According to Mr Guy, he asked one question through the interpreter, which was to the effect that an allegation of a female being sexually assaulted at his flat had been made, and did he have any knowledge that would assist the police.  He said that the interpreter spoke continuously in reply to that, apparently translating what the appellant said.  Mr Guy said that production 32 was his note of what the interpreter said.  He did not ask the interpreter to slow down, and noted it as best he could.  He then told the appellant to stop, and Mr Guy went to consult with a superior officer.  He was aware that a decision was made to detain the appellant.  In cross examination Mr  Guy accepted that the appellant could have been a suspect as he came to the flat within hours of the allegation being made and said he lived there.  Mr Guy said he did not have information which made the appellant a ‘prime candidate’.  He did not regard him as a suspect.  He said that he had no power to detain him, and that if he had refused to go to the police station with him, he would have sought instructions from his superior officer.  He did not need to do so as the appellant cooperated, and waited at the police station while an interpreter was sought.  He confirmed that he asked a single question and the note taken by him was of a single statement made by the interpreter.  Mr Guy denied that his whole purpose in speaking to the appellant was to secure an admission.  He said that as soon as he realised what had been said he told the appellant to stop, because Mr Guy realised the appellant had made an admission.  Mr Guy consulted with his superior officer, Mr Wilkie, and the appellant was detained.

DC Gray gave evidence to the effect that he was asked to interview the appellant as a witness in connection with an allegation made by women “(sic)” that she had been sexually assaulted by 4 or 5 males.  Mr Gray knew that a possible name had been given, ‘Malik’.  He said that he knew that the appellant had given his name as Ernest Radic that he had been brought to the police station as a witness and had limited English.  An interpreter was sought and took between half an hour and an hour to arrive.  He said that production 31 was his note of what was said once the interpreter was there.  He said that Mr Guy said:

“There is an allegation of sexual assault that has occurred. Do you have any information that may assist the police? “

According to Mr Gray he already knew the name and address of the appellant and had filled that in at the top of the page which forms production 31.  He said that the rest of production 31 was written by him, and was what the interpreter said in response the question asked by Mr Guy.  He said he had to write it very fast and it was a matter of scribbling it down.  According to my notes the answer came in ‘a single chunk’ from the interpreter. “

[9]        In addition to the evidence of the police officers, the interpreter gave evidence that she had interpreted accurately what the appellant said.

Submissions for the appellant
[10]      Counsel for the appellant conceded at the outset that there will be circumstances where it is entirely within the discretion of the trial judge to refuse to allow the late lodging of various matters.  However, he submitted that this case was unusual, because the trial judge accepted that there would be prejudice to the appellant because the statement to the police was inconsistent with his position at trial, as he did not admit to sexual intercourse when seen by the police that night.  Moreover, the advocate depute accepted that no prejudice was caused to the Crown by the matter being raised late.  The advocate depute did not submit that this was a tactical or strategic decision by the defence, and counsel could not understand how the trial judge could describe it as such.  He accepted that his submission depended on three propositions – (a) that the trial judge was entitled to refuse to allow this minute;  (b) that in considering this issue she was required to exercise her discretion; and (c) that her reasoning for doing so does not stand up to scrutiny.

[11]      Hanif v HM Advocate (2009 SLT 40) was a case concerning the admissibility of dock identification, and was, counsel submitted, readily distinguishable from the present case.  It was necessary to look to the whole circumstances of the case, including the prima facie significance of the evidence sought to be led and its probative value (HM Adv v Montgomery 1999 SCCR 959;  Murphy v HM Adv 2013 JC 60, particularly at paragraphs [33] and [35]).  In the present case the credibility of the appellant was of crucial importance to his defence.  The admission of a prior inconsistent statement was likely to cause serious damage to his credibility.  The statement had a high probative value, and it was clear from the advocate depute’s speech to the jury that the Crown placed considerable reliance on the inconsistency between the statement and the evidence of the appellant in court.  In all these circumstances the interests of justice required the trial judge to allow the minute to be argued.  Her reasons for not doing so did not stand up to scrutiny and were insupportable.

[12]      In any event, evidence of the appellant’s statement to the police was inadmissible.  The police cannot avoid the restrictions placed on them by Cadder v HM Adv (2011 SC (UKSC) 13) and Ambrose v Harris (2012 SC (UKSC) 53) simply by maintaining that the appellant was not a suspect.  It was necessary to look to the whole facts and circumstances.  The complainer told the police where the rape had occurred and gave details of how and where it happened.  She named one suspect, described another, and stated that there were five in total.  The appellant returned to his flat about one hour after the alleged incident; he opened the locked house with keys and identified himself as the householder.  The police indicated that they were not suspicious and thought that he might be a witness; one officer said that if the appellant had tried to leave, she would have tried to detain him, but the others said that they would not have done so and would have allowed him to go. 

[13]      The appellant did not speak English.  He was driven to a police station in the early hours of the morning, and placed in an interview room under the supervision of a police officer (who said that the appellant would have been free to leave, but the appellant was not told this).  The police ascertained from his identity card that he was Slovakian, and on this basis they arranged for a Slovakian interpreter.  However, although the appellant can speak Slovakian, it is his second language, his first language being Hungarian.  Although the interpreter said that she was comfortable speaking with the appellant and that what she said was a correct interpretation, all of these circumstances were relevant when assessing the fairness of the proceedings.  After the first two or three sentences of the appellant’s statement, the police officers ought to have stopped him on the basis that his status had changed from a witness to a suspect, and they ought then to have applied the proper procedures for the protection of the rights of a suspect. 

[14]      In these circumstances counsel submitted that the interview was unfair, and sought a finding from this court that it was unfair, notwithstanding the directions which the trial judge gave in her charge to the jury on this matter.

[15]      The leading of evidence about the appellant’s statement resulted in a miscarriage of justice.  The jury convicted the appellant by a majority.  The respective credibility of the complainer and the appellant was the central issue in this case.  The Crown case was not an overwhelming case against the appellant.  There was no evidence that the complainer had been drugged, and her symptoms and her subsequent distress were consistent with a hypoglycaemic fit.  Her physical injuries were equally consistent with consensual rough sex and rape.  Her blood sugar level was low and she was admitted to hospital for treatment for hypoglycaemia.  When her mother telephoned her shortly after it appeared that sexual intercourse had occurred, the complainer told her that there was nothing untoward and that she was simply tired and had been sleeping.  Her position about Malik and the identity of her assailants called her credibility into question.  In these circumstances the appellant’s credibility was crucial, and was seriously undermined by the admission into evidence of his statement to the police.

Submissions for the Crown
[16]      The advocate depute moved us to refuse this appeal.  This case called at a preliminary hearing on 22 October 2012, and there were two further continued hearings; at none of these hearings was there any suggestion that the appellant took issue with the admissibility of his statement to the police.  On the morning of the trial diet the Crown opposed the Minute on the basis that it would cause inconvenience as a result of the need to lead evidence on the admissibility issue before the trial began. 

[17]      It had not been shown that the trial judge took account of irrelevant factors, or failed to take account of relevant factors, or misapprehended the facts, or erred in law.  Her decision not to entertain the Minute cannot be said to be unreasonable.  The decision not to lodge and move a Minute objecting to admissibility was a strategic decision taken by Mr Fitzpatrick on behalf of the appellant.  On one view, the appellant’s statement to the police pointed to straightforward consensual sexual activity between the appellant and the complainer.  There was discussion between Mr Fitzpatrick and Mr Mulgrew on this point, and Mr Fitzpatrick’s view prevailed.  The trial judge correctly categorised this as a tactical or strategic decision taken in the course of preparation of the defence.

[18]      In any event, this was not an application that would obviously have succeeded.  The police got a report from the complainer about the alleged incident and the name of one of the perpetrators.  They understood that his name was Malik and that he was of Asian origin.  The appellant’s name was not Malik, and he was not apparently of Asian origin.  His identity papers showed him to be Ernest Radic and to be Slovakian.  He was treated as a witness, he was not cautioned, and he was not questioned in a way designed to elicit an admission.  There was no inducement or pressure placed on him.  A Slovakian interpreter was obtained, who appeared to have no difficulty in understanding the appellant and interpreting his statement.  Whenever it became clear that the appellant made reference to sexual conduct, the police officers stopped the process and proceeded on a more formal footing.  It could not be said that the only reasonable conclusion from the evidence was that the process was unfair. 

[19]      In any event, there was a compelling case against the appellant even without the evidence of his statement to the police.  This was a case of forcible rape, in which the complainer sustained physical injuries.  There was also the biological evidence linking forensic samples with the DNA of the appellant, and the immediate distress of the complainer.  The circumstances were capable of providing a compelling case for the Crown, and the appellant’s statement to the police was only one strand of this case.  There has been no miscarriage of justice.

Decision
[20]      The appellant can only succeed on the first issue if he can show that the trial judge’s reasoning for exercising her discretion to refuse to hear this Minute on the morning of the trial does not stand up to scrutiny.  In other words, the appellant requires to show that the trial judge took account of an irrelevant factor, or failed to take account of a relevant factor, or misapprehended the facts, or erred in law or made a decision that no judge could reasonably have made.

[21]      The trial judge took account of the fact that the appellant had lodged a special defence of consent.  We consider that she was entitled, and indeed correct, to do so.  She also gave consideration to the fact that there would be prejudice to the appellant arising from an apparently inconsistent statement.  She considered the fact that the advocate depute accepted that no prejudice was caused to the Crown by the matter being raised late, although a trial within a trial would be needed.  She also considered the cause of the lateness of the Minute, which she regarded as a tactical or strategic decision taken in the course of the preparation of the defence.  In light of the information given to us by counsel for the appellant and by the advocate depute in their submissions, we consider that she was entitled to describe this as a tactical or strategic decision. 

[22]      It appears to us that the trial judge gave proper consideration to the interests of justice when considering whether to allow this Minute to be heard.  We are unable to describe her exercise of discretion as unreasonable.

[23]      Moreover, we are not persuaded that the appellant’s statement to the police was inadmissible.  In light of the information which the police had when they first spoke to the appellant, they acted reasonably in treating him as a potential witness rather than as a suspect.  There may be cases in which it could be argued that in reality the police viewed a person as a suspect but claimed to treat him as a witness, in order to avoid the necessary procedures consequent upon the decisions in Cadder and Ambrose.  That would of course be quite improper, and would not be countenanced by the court.  However, this is not such a case.  The police were looking for a man named Malik, apparently of Asian origin.  The appellant was called Ernest, apparently of Slovakian origin.  He was taken to an interview room in a police station, but was free to leave if he chose to do so.  On the basis of his identity papers he was provided with a Slovakian interpreter; the interpreter gave evidence that she was comfortable speaking with the appellant and that she interpreted correctly.  As soon as the appellant made reference to his having engaged in sexual conduct with the complainer, the police officers stopped the process and proceeded more formally. 

[24]      Counsel for the appellant asked us to make a finding that the interview was unfair.  On the basis of the circumstances narrated above, we are not prepared to do that.  The trial judge gave clear and careful directions to the jury on this matter, directing them that they had to consider the fairness of the interview.  There is nothing in the circumstances of this case which would justify us in making the finding sought by counsel for the appellant. 

[25]      There were other significant elements of evidence from which the jury could properly draw the necessary inferences to enable them to find the appellant guilty.  We are not persuaded that there has been any miscarriage of justice in this case.  Accordingly this appeal is refused.