Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 39

HCA/2014/3486/XC

Lord Justice General

Lord Menzies

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

SAN LEE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: CM Mitchell, Ross; Faculty Criminal Appeals Unit (for Livingston Brown Ltd, Glasgow)

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

18 March 2016

Introduction

[1]        On 30 June 2014, at the High Court in Edinburgh, the appellant was convicted of a charge which libelled that:

“… on 18 April 2012 in a minibus at Sainsbury’s Superstore, Drip Road, Stirling … you … did assault [RM] … and while she was intoxicated with alcohol and incapable of giving or withholding consent, penetrate her vagina with your penis to her injury and you did thus rape her:  CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009”.

[2]        On 29 July 2014, the appellant was sentenced to four years and six months imprisonment.

[3]        The Note of Appeal raises, first, an issue of whether the appellant had a fair trial in circumstances in which, having initially stated that he did not want an interpreter at all and then changing his mind, the interpreter impeded rather than improved his understanding of the proceedings.  Secondly, the Note contends that the trial judge erred in her directions on reasonable belief.

The trial

[4]        The indictment called at a Preliminary Hearing on 16 April 2014.  There was no interpreter but, after discussion, it was recorded that there should be one for the trial.  The trial commenced on Tuesday, 24 June, when an interpreter was sworn.  It was only at that stage that a special defence of consent was tendered.  A jury was empanelled.  A joint minute was read, agreeing that, on the night in question, the appellant had had sexual intercourse with the complainer. 

[5]        The following morning, it is recorded that the interpreter had relayed to the court that, during the reading of the joint minute, the appellant had asked that he should stop interpreting as the translation was distracting.  The appellant was able to follow the English used.  The judge asked to be addressed on this.  The appellant’s counsel advised that the appellant had changed his position about the need for an interpreter several times in the course of the proceedings so far.  He asked that the status quo of full simultaneous interpretation should continue “at least until lunchtime when, if need be, the position could be reconsidered”.  The judge endorsed this view and directed the interpreter accordingly.  The matter was not revisited during the trial.

[6]        The complainer commenced her testimony.  She was a university student.  She had been drinking vodka with friends earlier in the evening.  They had gone to a nightclub.  She became separated from her friends.  She had no memory of ever meeting the appellant, far less of having sexual intercourse with him.  The first time she became aware of that possibility was when she awoke the following morning in a van in a supermarket car park.  The appellant, who was also in the van, had told her that she had “better take the morning after pill”.

[7]        CCTV images showed the complainer leaving the nightclub alone.  She was followed about 45 seconds later by the appellant.  A second segment of CCTV showed the complainer and the appellant walking together in the lane outside the nightclub.  The appellant was steadying the complainer by putting his arm around her.  He guided her to his van, which was parked nearby.  Both entered the van and it drove off a short time later. 

[8]        The mobile phones of the complainer and the appellant were analysed, as was that of a male friend of the complainer, namely GR.  GR had received a text at about 6.43pm in which the complainer had said “getting steamy xxx”.  Another text at 1.29am stated simply “Help”.  He took this as playful, meaning that she had had a few drinks, not that she was in any danger.  A further text said “disk”.  He could not explain what this meant.  At 1.38am an entry had been created in the complainer’s mobile containing the appellant’s name and mobile number.  There had been a number of missed calls from the appellant’s mobile to that of the complainer between about 4.22am and 4.40am.  The appellant’s phone contained two photographs; one of the complainer’s driving licence, taken at about 4.47am, and one of the complainer asleep, clothed and lying in the back seat of his van at 4.49am.   

[9]        At about 5.38am the complainer phoned GR.  The call lasted just under a minute.  His impression was that she was very distracted.  She was listening to someone else.  There was a further short call a few minutes later.  It took two or three calls to see what she wanted.  At about 5:45am, she sent two one-word texts.  Neither made sense.  At 5:46am, the complainer texted, “help”.  There were further text exchanges in which the complainer said, “I have a black eye”.  He had replied, “Yeah, you said.  What have you been up to?” It was agreed that she would come to his flat.  When she arrived, the complainer was quite steady and not intoxicated.  She was mainly worried about her black eye.  They both went to sleep.

[10]      The complainer explained that she had had her period that evening.  She had inserted a tampon before going out.  She would never have had intercourse while she had her period.  The tampon was not where it should have been.  It was much higher inside her than was normal.  It had not been noticed at her medical examination.  She would never have got into a van with someone she did not know or had only just met.  She had not been using any contraception at the time.  She would never have had unprotected sex. 

[11]      When she awoke, the complainer’s face was swollen.  She had a black eye.  The appellant had told her she had fallen.  She had no recollection of any fall.            Her “whole body ached”.  She had bruises on both arms and on her upper right thigh and above the knee of her left leg.  She did not have these the previous evening before she went out.

[12]      The appellant initiated a series of text messages with the complainer just before midday.  The complainer asked how she had come by her black eye.  The appellant had texted: “You were drunk and you suddenly fell down.  You were really drunk!!!” There was another call between the appellant and the complainer.  Her friend JD had taken her mobile and asked the appellant (as if she was the complainer) “did we have sex last night?” and the appellant had replied “yes”.

[13]      The forensic medical examiner found bruising on the complainer’s thighs and on the outer aspects of both her arms.  There was linear bruising to the right thigh, close together.  This was suggestive of being gripped by a whole hand.  Moderate force had been used.  No tampon had been in place during sexual intercourse.  The FME did not think that he had used a speculum.  Had a speculum not been used, he would not have expected to have noticed the tampon.

[14]      The appellant had been traced by the police as the person who had rented the van.  He had given a “no comment” interview. 

Directions
[15]      The judge directed the jury that rape consisted of deliberate penile penetration “without the complainer’s consent, and without any reasonable belief on the part of the accused that the complainer consented.”  She stressed that all three elements, that is deliberate penetration, lack of consent and absence of reasonable belief in consent, required proof by corroborated evidence.  She told the jury that there could be no consent if a complainer was incapable of consenting because of the effects of alcohol.  She turned to reasonable belief and stated that it was for the Crown to prove that the appellant had no reasonable belief that the complainer consented.  If an accused said that he believed that the complainer had consented, then the Crown had to prove that such a belief was not reasonable.

[16]      On returning to the issue of consent, the trial judge said that the Crown had periled their case on proving that the complainer was incapable of giving consent by reason of her consumption of alcohol.  Having gone through much of the evidence bearing upon that aspect, the judge turned separately to look at lack of reasonable belief.  She explained that “the third element is the absence of reasonable belief by the accused that the complainer had the capacity to consent to sexual activity”.  She repeated, what will be seen to be, an error in saying that the Crown’s position was that there was a considerable “crossover” in the evidence relative to lack of consent and lack of reasonable belief “that the complainer consented, or was capable of giving her free agreement and consent”.  Once more, she said that the Crown’s position was that “the accused had no reasonable basis for believing that the complainer consented, or was capable of consenting to sexual contact”.  Thus, the judge introduced the concept of reasonable belief not only in relation to consent but also for capacity to consent.  She continued:

“if you decide ... that the accused did have a reasonable belief that the complainer was not incapable by reason of intoxication, so if you accept that the accused did have a reasonable belief that the complainer was not incapable by reason of intoxication so that she was capable of consenting, you would have to decide whether you were satisfied that he could not reasonably have held that belief.  And in that eventuality, you would be entitled to have regard to those same chapters of evidence as related to the second element ...”.

She stressed that, if the jury accepted that the accused believed that the complainer was capable of consenting and that this was reasonable, then they required to acquit, as they did if they had a reasonable doubt about that matter.

Evidence in the Appeal Process
[17]      In support of what was to be one of two main grounds of appeal for which leave was granted, the appellant lodged a number of documents about the nature of the interpretation at first instance.  First, he produced an affidavit from himself stating that he had gone to England from Korea at the age of 14 with no English because of a desire to become a professional footballer.  He had spent 2 years at school in England, and had been given 2 hours extra-curricular English each week.  He maintained that he could not understand the court proceedings at the Preliminary Hearing.  He had changed his legal team at that point.  His Queen’s Counsel had been instructed by new agents.  He had consulted him in person and by Skype.  He had not required an interpreter for pre-trial meetings with his solicitor or counsel.  The appellant had formed the view that his interpreter was from the South East of South Korea.  He had a very strong accent.  He was not very good at interpreting, would miss out a lot and was very slow.  Sometimes the appellant did not know what the interpreter was saying in Korean.  The interpreter had not asked for the witnesses to slow down.  The appellant did not do anything about this because he thought that it would not be polite. 

[18]      According to the appellant, he had raised his concerns with his counsel.  The matter was discussed with the judge.  The appellant was not able to follow the discussion between his counsel and the judge.  The interpreter tried to explain it to him, but was unsuccessful.  On either the Thursday or the Friday of the trial, the appellant spoke with the interpreter in Korean.  He was becoming angry because of the standard of interpretation.  He told the interpreter that he needed him to talk faster, that he was mumbling and going around in circles.  The interpreter had replied in Korean.  The judge had noticed this and given the appellant a row.  The trial had been moved to a smaller court room after the first day.  The Crown had asked the judge to tell the interpreter to lower his voice.  After that, the interpreter had lost confidence.  He became worse and mumbled more. 

[19]      An affidavit from the appellant’s friend, DA, stated that he had attended one pre-trial meeting in Edinburgh with the appellant and his solicitor.  The appellant had no understanding of the proceedings nor the English language skills to deal with a solicitor discussing legal procedures.  There was no discussion as to whether there should be an interpreter.  On the journey back to England, DA had explained some of the things which were said and what they meant.  During the trial, the appellant had regularly complained to DA about the interpreter.  The appellant could not follow the evidence because the interpreter could not catch up with what the witnesses were saying.  The appellant stated to DA that he was trying to listen to the witnesses in English and also to the Korean interpretation.  This was confusing. 

[20]      Two reports and an affidavit from Professor Isabelle Perez, a Professorial Fellow in Languages and Intercultural Studies in the School of Management and Languages at Heriot-Watt University, were produced.  Her first report, dated 17 March 2015, had been prepared with reference to the Equal Treatment Bench Book, Guidance for the Judiciary (Judicial Institute, 3^rd ed, 2014).  Although the appellant had said that he could “communicate on a reasonable basis in English”, such day to day conversation might require only a very low level of competence.  Although the appellant had received two years of schooling in the UK, and that might be sufficient to attain a “good” level of fluency, additional contextual information suggested that the degree of his immersion in an English speaking environment was limited.  Even if he were assumed to have English competence equivalent to B2 (upper intermediate on a 6-point scale according to the Common European Framework for Languages), this was not necessarily sufficient for an individual to gain a full appreciation of what was happening in legal settings. 

[21]      Given his limited competence in English, the unknown quality of the Korean interpretation and the unfamiliar technical legal content of the output, the appellant’s ability to understand what was being said had been impaired.  The judge had not followed the recommendations contained in Chapter 5 of the Equal Treatment Bench Book. 

[22]      In her second report, dated 10 November 2015, Professor Perez noted that the interpreter at the trial did not possess the Diploma in Public Service Interpreting.  She concluded that he was not sufficiently qualified.  Professor Perez had listened to an excerpt from the trial proceedings on 27 June 2014.  The speed of questioning and response was very fast, and at times too fast, for the purpose of interpreting fully and accurately.  The recommended speed for English translation was between 100  and 120 words per minute.  140 wpm was considered fast.  Professor Perez had transcribed and carried out a word count between 10:10:00 and 10:11:00, and again between 10:19:00 and 10:20:00.  She had recorded a speed of over 180 wpm in both instances.

[23]      In her affidavit, Professor Perez criticised the interpreter for failing to mention the appellant’s interruptions to the court and for resorting to summary or gist interpreting.  This was not appropriate for court purposes.  Every single detail and uttering in court might be relevant to the case.  In her opinion, a qualified professional interpreter would not summarise in this way. 

[24]      An affidavit from the interpreter, Sung Woo Lee, stated that he was employed as a freelance interpreter with Global Languages.  This case had been particularly difficult because the appellant had understood English.  As the appellant was listening to the evidence in English, he had reacted to it.  When witnesses said things, the appellant would say “that’s not true”.  He was trying to listen in English and to the Korean translation.  Sometimes the testimony was very fast.  The interpreter would then try to convey the meaning rather than provide a word for word translation.  He had been speaking at a normal conversational level.  When he was asked to reduce his volume, he had done so, and moved closer to the appellant.  The appellant had not complained that he could not hear him.  The trial judge’s admonitory remarks had been addressed to him, not the appellant.  The appellant had never made any complaint about the quality of his interpretation.  Had he raised any issue, the interpreter would have informed the judge or the clerk and requested that another interpreter replace him. 

[25]      The interpreter had a MA in Theology.  He had a Certificate in Public Service Interpreting from the Glasgow Interpreting Service.  The certificate course covered the NHS, education, the court system, the police and other public service bodies.  The course had lasted for 6 or 7 weeks in 2000.  He had attended the Global Languages internal course, which had involved 3 hours training specifically related to the courts.  He had interpreted in two previous criminal court cases, one of which concerned child sexual abuse.  He came from Pusan in Korea.  The accent from Pusan was strong, but this was the first time that he had heard anyone from Korea say he did not understand him.  His wife was from Seoul and she had never had any difficulty. 

[26]      Comments were sought and received from the appellant’s trial representative.  His Queen’s Counsel (sol adv) stated that the appellant’s English was good enough to provide instructions and to understand advice.  No interpreter was present at any pre-trial consultation.  The appellant had not requested one.  The appellant had been able to follow what was being discussed.  If counsel had had any concerns about the appellant’s ability to understand, he would have made the appellant aware of this and advised that an interpreter be engaged.  Counsel had been able to discuss the evidence with the appellant in detail.  The appellant had been able to explain his position in full in person and by email.  Some of the emails were produced.  Not uncommonly, there were some matters about which the appellant had been unable to give a satisfactory or convincing explanation.

[27]      The question of the level of interpretation had first been mentioned by the clerk of court shortly before the trial had been due to start.  Counsel had taken instructions.  The appellant’s initial position had been that he wished to have the interpreter available only as a safety net for evidence which he could not follow.  A short time later, he indicated that he wished to have full simultaneous translation.  The pace of examination and cross-examination had been such as to allow time for full simultaneous interpretation. 

[28]      The matter of the interpreter had been raised on the second day of the trial (25 June 2014), as recorded in the court minute.  Following discussion with the appellant, it appeared that the appellant had been trying to listen to the evidence of the witnesses in English, rather than the interpreter.  The appellant’s difficulties arose because of his proficiency in, rather than his poor grasp of, English.  There was no serious issue with the appellant’s ability to understand the proceedings.  The appellant had understood the evidence sufficiently to provide instructions.  In any event, there was nothing in the evidence which required any additional input.  All matters had featured in the witness statements and in counsel’s preparation for trial.  Any difficulties experienced by the appellant were the same as any young man in his position, with no previous court experience, facing court proceedings on a serious charge, rather than as a consequence of poor English. 

[29]      The appellant’s instructing solicitor had had no concerns at all about the appellant’s understanding of what was being said at meetings and consultations pre-trial.  He had no difficulty in understanding the appellant.  On each occasion the appellant had engaged fully in the discussions and was able to state his views on the evidence without difficulty.  The appellant had been able to follow and fully understand the evidence.

Submissions
[30]      Two grounds of appeal were granted leave.  The first was that the appellant had not had a fair trial because the interpretation had been such as to impede the appellant’s ability to understand the case against him.  The interpretation had not accorded with Art 2(5) of the Directive 2010/64/EU.  No issue was taken about the appellant’s ability to instruct counsel before and at the trial.  The focus was solely on the standard of interpretation at trial.  The faults had been identified in Professor Perez’s reports and affidavits.  The interpreter had not been properly qualified.  The standard of his interpretation had fallen below acceptable standards and failed to provide an adequate procedural safeguard.  Reference was made to Hassan v HM Advocate 2013 SLT 217 and McDougall v HM Advocate 2015 SLT 804.

[31]      The second ground was that the trial judge had materially misdirected the jury in directing them to apply a further test, once reasonable belief had been established.  She had also erred in directing them that, in determining reasonable belief, they could have regard to the same features as they had considered relative to consent.  For example, the jury ought not to have considered the complainer’s memory loss since the appellant would have been unaware of it at the time.

[32]      The advocate depute, who was asked for his submissions on the second ground, maintained (as the trial judge had done in her report) that the insertion of “reasonable” before “belief” in the impugned part of her charge had been a slip of the tongue.  This error was not productive of a miscarriage of justice once it was looked at in the context of the whole charge (see Johnstone v HM Advocate 1998 SLT 788 at 792; McPhelim v HM Advocate 1960 JC 17).  It could not be said that the jury would have been confused by the direction on what evidence could be taken into account.  It would defy common sense to suppose that they would have had regard to the complainer’s loss of memory in determining reasonable belief.

Decision
[33]      In Hassan v HM Advocate 2013 SLT 217 the court said (at para [33]):

“There is, of course, no difficulty with the proposition that, where an accused person is unable adequately to understand English at a trial diet, he has a right to have the assistance of an interpreter (HM Advocate v Olsson 1941 JC 63; Art 6(3) of the European Convention).  The assistance provided must be such as enables the accused to know what the case against him is and to defend himself properly, notably by being able to present his version of events to the court (Diallo v Sweden, 5 January 2010, App No. 1320/07).  The level of necessary assistance may vary according to the accused’s level of understanding English.  Where his knowledge is good but incomplete, for example, it may be sufficient for the accused to have an interpreter available to assist in moments of difficulty.”

This is in line with the Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, which provides (Art 2.8) that:

“interpretation shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.”

[34]      This appellant was proficient in English, even if it was not his native tongue.  He had spent 10 years in the United Kingdom, 2 of them at school.  It is difficult to envisage why he required simultaneous translation of the testimony of the witnesses into Korean.  Nevertheless, that was what he requested through his counsel.  The court complied with that request, as it did also in the appeal process.

[35]      The case against the appellant came primarily in the form of the testimony of the complainer, a doctor speaking to injuries and some of the complainer’s friends referring to events in the night club, texts and related matters.  There was no technical evidence.  It reflected, according to his own trial counsel, what had been anticipated in advance and discussed pre-trial.  The appellant’s position had been communicated to his legal advisers and it was, in due course, put to the witnesses where required.  At no point did the appellant identify anything specific that he either did not follow or had been unable to deal with.  The appellant elected not to give evidence, apparently well in advance of trial, so there is no issue in relation to his ability to present his account adequately to the jury.  In these circumstances, it is impossible to perceive any unfairness such as would be conducive to a miscarriage of justice.

[36]      As was pointed out in Hassan v HM Advocate (supra, at para [34] following dicta in the Canadian case of R v Tran [1994] 2 SCR 951 at 978) the purpose of providing interpretation is to create a level and fair playing field.  It is to provide:

“interpretation assistance and not formal translation, such as might be expected in relation to a document, at a level which might be achieved by a linguistic expert after mature consideration and study.  Interpretation is an art ... what is required is interpretation which ensures that the accused person understands what is being said ...”.

An accused has a choice to make.  He may elect to listen to the evidence in English, but ask for assistance if he does not understand something, or he may decide to listen to the testimony in his native language through simultaneous translation from the interpreter.  It is inevitable in the latter case that he will not be able to listen satisfactorily to both Korean and English at the same time.  At any stage, of course, an accused can express the view that his election was wrong and seek an adjustment to the interpretation arrangements.

[37]      The appellant’s complaint was that parts of the witnesses’ testimony were not interpreted into Korean.  He was aware of this because he could hear in English those parts which (he says) were not interpreted.  He did not, however, attempt to identify those parts said to have been omitted and what difference this made.  It is difficult to see what difference could have been made.  The appellant’s counsel and agent and the interpreter have all confirmed that, fundamentally, there was no material language difficulty at trial.  There was no complaint made by the appellant in the course of the evidence, speeches or charge.  Notwithstanding the complaints made post-conviction by the appellant, and Professor Perez’s counsel of perfection, the court is not persuaded that this appellant had any difficulty in understanding the case against him or in communicating the nature of his defence to his representatives.  There was no technical material requiring special translation.  The fact that, occasionally, it was not possible or practicable to translate absolutely everything word for word because of the speed of diction used by the witnesses or counsel is not per se indicative of substantial unfairness.  It is in the nature of a trial where interpreting facilities are provided.

[38]      The appellant complains that the interpreter did not possess the Diploma in Public Service Interpreting.  He did have the Certificate in Public Service Interpreting from the Glasgow Interpreting Service.  This was the predecessor of the DPSI (Hassan v HM Advocate, (supra) para [21]).  In any event, the interpreter had 10 years’ interpreting experience.  The booking form, which the Scottish Courts and Tribunal Service and its contractor Global Language Services Ltd use, specified the interpreter’s qualifications correctly and did not suggest that he did “not fully meet the requirements sought”.  There is nothing to demonstrate that the interpreter did not possess the necessary skills and qualifications or that he was anything other than efficient and professional in the service which he provided. 

[39]      For the court to entertain a complaint of this kind, it must be satisfied that the appellant might have been prejudiced by his lack of understanding (Erkurt v Higson 2003 JC 23, at para [8]; Mikhailitchenko v Normand 1993 SLT 1138, LJC (Ross) at 1140).  There is nothing substantial to indicate that this appellant might have suffered prejudice.  Although the court has the primary obligation to ensure the fairness of the trial proceedings, the conduct of the defence is essentially a matter between an accused and his representatives.  As was observed in Erkurt v Higson, (supra) (at para [6]):

“... whether an accused person is understanding what is going on, with or without the assistance of an interpreter, is something that can only be known to that person and his agent.  If the agent perceives that a genuine problem has arisen in obtaining instructions on an issue which has arisen then it is for him to advise the court accordingly so that proper steps can be taken to resolve the difficulty”.

If there had been any continuing difficulty with the interpreter, the appellant could have drawn that to the court’s attention, through his representatives.  On the basis that the minute of 25 June 2014 records that any issue with the interpretation would be re-visited at lunchtime “if need be”, in the absence of any further complaint, the judge was entitled to assume that any issue had resolved itself and that there was no ongoing difficulty. 

[40]      In relation to the second ground of appeal, there is, of course, an error in the judge’s use of “reasonable” in the impugned direction.  This is clearly a linguistic slip.  The tenor of the charge, however, would have been clear to the jury; viz. that, if they considered that the appellant believed that the complainer had consented, they required to acquit if that belief was reasonable (or had a reasonable doubt about that).  There is a more significant misdirection, which is not strictly raised in the appeal, where the judge directs the jury that, if the appellant reasonably believed that the complainer was capable of consenting, they should acquit.  It is not clear why, having given the jury clear directions on the requirements for proof of rape, the judge engaged in this curious frolic.  However, if anything, it favoured the appellant and no miscarriage of justice can be seen to have occurred.  Similarly, the judge’s reference to using the material relative to the issue of consent when considering reasonable belief may not be strictly correct in legal theory.  However, the general meaning was clear.  It should not be assumed that the jury would have taken the complainer’s loss of memory into account in relation to the appellant’s belief at the time.

[41]      For these reasons, the appeal must be refused.  However, although the issue does not arise for a decision and the jury were specifically asked to consider reasonable belief of consent by the Crown, a question remains as to why the judge gave the jury any specific directions on this topic.  As the trial judge correctly pointed out, the Crown case was periled on proving that the complainer was incapable of consenting because of her alcohol consumption.  Once that matter was proved, in circumstances where the appellant gave no evidence and provided a “no comment” interview, it is difficult to see how the issue of reasonable belief could arise.  There was no evidence that the appellant believed, or could have believed, that the complainer was consenting to intercourse.  A decision in this area remains, once more, for another day (see Drummond v HM Advocate 2015 SCCR 180 at para [20]).