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Her Majesty's Advocate v. Milligan [2003] ScotSC 19 (19 March 2003)

Ref DNO 2510128

JUDGMENT OF SHERIFF A.L. STEWART, Q.C.

in causa

Her Majesty's Advocate

against

Vincent James Milligan

_______________________________

Act:O'Mahony, Procurator Fiscal Depute

Alt:Niven-Smith, Advocate, instructed by Muir, Myles, Laverty, Solicitors, Dundee

INTRODUCTION

The panel is charged with wilful fire raising, the offence allegedly having been committed on 23 November 2002. The trial of the panel before a jury commenced on 18 March 2003. In the course of the Crown case the procurator fiscal depute sought to lead evidence of what had occurred during an interview of the panel by the police. This was objected to by counsel for the panel on the ground that the conduct of the interview had been unfair. I accordingly heard evidence outwith the presence of the jury following the procedure laid down in Thompson v Crowe 2000 J.C., 1999 SCCR 1003, 1999 SLT 1434.

EVIDENCE IN THE TRIAL WITHIN A TRIAL

For the Crown I heard evidence from Detective Sergeant Kidd, who conducted the interview and Mr Andrew Anderson, a charge nurse from Strathmartine Hospital, who was present throughout the interview. I viewed the whole of the video tape of the interview. The only evidence led on behalf of the panel was that of Mrs Erica Robb, a consultant forensic clinical psychologist.

The evidence led before me disclosed that on 25 November 2002 the panel was invited by Detective Sergeant Kidd to attend Police Headquarters, Dundee for the purpose of being interviewed by the police in connection with the alleged offence. D.S. Kidd accepted that the panel was at that time a suspect. In November 2002 the panel was an in-patient at the Craigowl Centre, Strathmartine Hospital, Dundee. He had been diagnosed as suffering from paranoid schizophrenia and mild learning disability. In July 2001 his intelligence quotient had been recorded as 55.

The panel requested the attendance of his solicitor at Police Headquarters and it was arranged that his solicitor, Mr James Laverty, should meet him there. D.S. Kidd, was unaware that Mr Laverty had been invited to attend. It was initially D.S. Kidd's intention that the panel should voluntarily attend for interview. D.S. Kidd was aware that the panel had certain mental problems, although he was unaware of their exact nature. He had accordingly arranged for an "appropriate adult" to be in attendance during the interview. This was Mrs Janet Lynch, who is a social worker.

The panel attended at the police office accompanied by Mr Anderson and another nurse from Strathmartine. Mr Laverty was present at the time when the panel arrived at the police office or shortly thereafter. The panel spoke to him. The panel expressed his wish that Mr Laverty should be present during any interview which he might have with the police.

When D.S. Kidd discovered that Mr Laverty was at the police office and that the panel wished Mr Laverty to be present during his interview, D.S. Kidd changed his mind about treating the panel's attendance as voluntary and decided to detain him in terms of s. 14 of the Criminal Procedure (Scotland) Act 1995. He informed the panel of this fact and that he would be interviewed outwith Mr Laverty's presence. Mr Laverty then left the police office. At about this time Mrs Lynch introduced herself to the panel and spoke to him. It was not established what was said between them.

Thereafter the panel was interviewed by D.S. Kidd and D.C. Thomson. The interview was recorded on both audio and video tape. As well as the panel and the two police officers there were present in the interview room Mr Anderson and Mrs Lynch.

The interview began about 7.18 p.m. with D.S. Kidd administering a common law caution to the panel. This was in the usual form. He told the panel that the interview was to be recorded on audio and video tape, that he would be asked questions, that he was not obliged to answer any question, that answers to questions would be noted and could be used in evidence. He then asked the panel what he understood by that caution. The panel answered that he understood that he would be audio and video taped and that notes would be made and that he would be "cautioned and that". D.S. Kidd asked Mrs Lynch if she was happy with that and Mrs Lynch replied that she was.

D.S. Kidd then proceeded to question the panel in detail about his movements during 23 November 2002. At an early stage in the interview D.S. Kidd in explaining to the panel what was meant by his being detained used the phrase, "We could lock you down and everything." Shortly thereafter the panel asked if Mr Laverty could be present. D.S. Kidd replied that this was not possible. The panel answered questions reasonably calmly for about 20 minutes. Thereafter he became agitated. Between 7.43 p.m. and 7.55 p.m. he asked on six occasions for Mr Laverty to be present. On each occasion D.S. Kidd stated that Mr Laverty could not be present until the interview was concluded. During this same period D.S. Kidd frequently put to the panel that he was not telling the truth. There were several long periods of silence. The panel appeared to be tearful. During one of these the panel could be heard making a sound which was identified as hyperventilating. Eventually the panel made a statement which might have been construed as an admission of involvement in the starting of a fire at the locus. The interview ended about 8.04 p.m..

Mrs Robb spoke to the contents of her report, defence production 1 and elaborated on certain matters. She had interviewed the panel for a period of some two hours on 21 February 2003. The purpose of her interview was "to assess his level of cognitive functioning with a view to providing an opinion on his ability to cope with interrogative pressure and to ascertain whether he would be able to understand and fully participate in his forthcoming trial". She had also viewed a copy of the complete videotape of the panel's interview with the police. She was aware that the panel suffered from paranoid schizophrenia which was manifested by inter alia auditory hallucinations. This condition was under control as the result of medication.

Mrs Robb administered a standard intelligence test to the panel. The result of this was that his verbal IQ score was 70, which is borderline learning disability. His performance score was 98 which is average, and his full scale score was 80 which is low average. Mrs Robb considered that the difference between the verbal score and the performance score was significant. The verbal score was based on the panel's ability to understand verbal communication and on his ability himself to communicate verbally. The panel would have specific difficulty with verbal comprehension. Mrs Robb also administered to the panel a test of his suggestibility. The result of this was normal. The panel was not shown to be any more suggestible than an average person.

Mrs Robb explained that the difference between the IQ score recorded by her on 21 February 2003 and that recorded in July 2001 was the result of several factors, including the fact that the test given to the panel in 2001 had been a test specifically devised for children and the fact that the panel had substantially matured between the two tests.

During her interview with the panel (which was before she viewed the video of the police interview) Mrs Robb asked him about being cautioned. Her recollection of his response was that, while he was now aware that he did not have to answer questions, he had not been aware of that fact when the police were interviewing him.

Mrs Robb's conclusions were:-

[The panel] is a vulnerable young man of very limited verbal comprehension and expression who suffers from auditory hallucinations controlled by psychotropic medication. His verbal ability is lower than 98% of the general population of his peers and he is unable to cope with complex concepts or abstract thoughts.

When asked [the panel] was unclear about the full meaning of the police caution and his explanation was incomplete. Despite this the police officer continued with the interview.

Considerable pressure was brought to bear on [the panel] who, although he is not abnormally suggestible, is psychologically vulnerable and verbally limited, and he became distressed and tearful during the police interview and began to hyperventilate. At this, his lowest point, the inference was presented to him that if he co-operated with the police and told them what they wanted to hear, he would be allowed to see and talk to his solicitor, Jim Laverty, to whom he clearly looked for support in managing a situation with which he was unable to deal on his own. He then provided the police with the explanation that they sought.

I found Mrs Robb to be an impressive witness. She gave her evidence in what appeared to me to be a completely objective manner. Her conclusions were, in my opinion, justified by the information available to her.

SUBMISSIONS FOR THE CROWN

For the Crown the procurator fiscal depute submitted that there had been nothing unfair about the way in which the interview had been conducted. The police had been entitled to detain the panel. There was no suggestion that they did not have sufficient cause for doing so. They had therefore been entitled to proceed to question him without a solicitor being present. So far as the panel's disability was concerned, account of that had been taken. An "appropriate adult" had been provided. The panel had had an opportunity of speaking with this person. The panel had not been threatened in the course of the interview. In telling the panel that he could not see his solicitor until the interview was concluded the police were merely telling him the truth. They were not offering him any inducement. Mr Anderson (the charge nurse present during the interview) had agreed that the police had been patient and tolerant. What were the police to do in the circumstances? Should they refrain from interviewing an individual with the sort of mental problem which the panel had? Even if the panel had not fully understood the caution that did not necessarily vitiate the interview. The procurator fiscal depute referred me to the cases of Barrie v H.M.A. 2002 SLT 1053 and Ucak v H.M.A. 1998 S.C.C.R. 517. He conceded that these cases were of limited assistance. I agree with him. The facts in them were different from those in the present case, and I do not consider that there were any general observations made which would help me here.

In all the circumstances the Crown had established that there had been nothing unfair about the interview. The jury should be permitted to hear evidence about it.

SUBMISSIONS FOR THE PANEL

In reply counsel for the panel submitted that the interview was unfair. He reminded me that the onus was on the Crown to establish on a balance of probabilities that the evidence was admissible: Thompson v Crowe, cit. supra at 1043. The panel had not understood his fundamental right to remain silent. Mrs Lynch (the "appropriate adult") had not sought to clarify with the panel that he had really understood the meaning of the caution. The mental state of a person being interviewed by the police could be an important factor in deciding on the admissibility of what was said in the course of an interview: H.M.A. v Gilgannon 1983 S.C.C.R. 10. Counsel also referred me to Higgins v H.M.A. 1993 S.C.C.R. 542 in which Gilgannon had been distinguished. In the present case the panel had both learning difficulties and a mental illness. This case was accordingly more in line with Gilgannon than with Higgins. D.S. Kidd knew that there were problems and that he had to be careful. For that reason he had arranged for the attendance of an "appropriate adult".

Given the panel's mental condition, D.S. Kidd's reaction to his requests for a solicitor amounted to unfairness. It was clear from the videotape of the interview that the panel had become distressed. This was confirmed by Mrs Robb. The constant suggestion to the panel that he was not telling the truth amounted to undue pressure. As a result the panel had become stressed and his will was broken. Counsel referred me to Codona v H.M.A. 1996 S.C.C.R. 300; 1996 S.L.T. 1100. There too a vulnerable suspect had been subjected to what the court held to be unreasonable questioning.

Looking to the whole circumstances, the interview had been unfairly conducted and the evidence of it should not be admitted.

DECISION

In my opinion, it is essential that any person interviewed by the police as a suspect (especially if he or she has been detained) should not only be informed of his or her legal rights but should fully understand what these rights are. At one stage in his submission the procurator fiscal depute seemed to suggest that it was not fatal to the admissibility of the contents of an interview that a suspect had not understood the caution which had been administered. In my opinion, that cannot be correct. The right to silence is a basic principle of our criminal jurisprudence. A suspect is entitled to know that fact.

In the present case I am satisfied that the Crown has failed to prove on a balance of probabilities that the panel knew that he was entitled to refuse to answer any question put to him by the police. In my opinion, the panel's response when D.S. Kidd very properly sought to establish that he had understood the caution makes it reasonably clear that he had not. He repeated certain of the phrases which D.S. Kidd had used, but, most significantly, did not say that he realised that he did not have to answer any question. Mrs Robb's evidence of the panel's verbal difficulties reinforces the impression which I myself received when I viewed the videotape at this point.

I have to say that I am surprised at the conduct of the "appropriate adult" at this stage in the proceedings. Unfortunately, Mrs Lynch was not a witness before me. I am unaware of what, if any, knowledge she may have had of criminal procedure and of the importance of the caution. I suspect that her knowledge must be very limited. I do not think that any person with experience of criminal matters could possibly have said (as Mrs Lynch did) that he or she was happy with the panel's response to the question of what he understood by the terms of the caution.

I think it appropriate to make three comments in this context. First, if there is a place for an ""appropriate adult" when a vulnerable suspect is being interviewed by the police, it is essential that that person has at least a basic knowledge of the rights of a suspect and is able to advise the suspect of these rights in simple terms. Secondly, where, as in this case, it is clear that the circumstances of an interview of a suspect by the police are likely to be challenged and there has been an "appropriate adult" in attendance, he or she should be on the Crown list of witnesses. Thirdly, I suggest that the police should give careful consideration to the question whether, when a vulnerable suspect, as opposed to a vulnerable witness, is being interviewed, the person accompanying that suspect should not normally be a solicitor rather than an "appropriate adult". While the point was not specifically taken in the present case, if Mr Laverty had been present during the interview, I think it is very unlikely that any challenge would have been taken to it.

The fact that it is not established that the panel understood his right to decline to answer questions means that the interview was not fairly conducted and accordingly evidence of it is inadmissible.

That is sufficient for disposal of the defence objection in this case. However, counsel made a secondary submission based on what he argued was improper questioning of the panel. In the light of the authorities to which counsel referred me, especially Codona, I have to say that, in my opinion, the panel's answers during the latter part of the interview should probably have been inadmissible on that ground too. While reasonably robust questioning by the police of a suspect may be acceptable where the suspect is a person of full physical and mental capacity, that is not the case where the suspect is suffering from some disability. In the present case the panel was of limited intellectual capacity and was suffering from a mental illness, albeit that was responding to treatment. It is perhaps a borderline case, but I think that here D.S. Kidd did overstep the limits of proper questioning. Even if I had been satisfied that the panel had understood his right to remain silent, I should have excluded his answers on this ground.

In the whole matter I must hold that the contents of the panel's interview with the police on 25 November 2002 are not admissible.