APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY HER MAJESTY'S ADVOCATE AGAINST JF
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 106
HCA/2014-005072-XC
Lord Brodie
Lady Clark of Calton
Lord Philip
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL UNDER SECTION 74(1) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
HER MAJESTY’S ADVOCATE
Appellant;
against
J F
Respondent:
Appellant: A Edwards, AD; Crown Agent
Respondent: C Mitchell; Beltrami & Co
11 December 2014
Introduction
[1] This is an appeal at the instance of the Crown in terms of section 74(1) of the Criminal Procedure (Scotland) Act 1995 from a decision of the sheriff at Dunfermline at a preliminary hearing upholding an objection on behalf of the respondent to the admissibility of evidence of what had been said by the respondent in reply to questioning by the police during a telephone call on the morning of 12 March 2013 and subsequently when he attended at Dunfermline police office on 12 March 2013.
[2] The sheriff has provided a report which discloses that objection had been made in terms of two minutes, one in terms of section 71(2) of the 1995 Act, the other raising a compatibility issue under reference to article 6 of the European Convention on Human Rights. It further appears from the report that the sheriff heard evidence over three days from two police officers: DC Murphy and PC Delaney and the respondent.
[3] What the sheriff’s report does not do is to say anything about the indictment which had been served on the respondent or the sheriff’s understanding of the precise issue or issues which were to be resolved at the preliminary hearing. The sheriff does not summarise the evidence he heard in any coherent or readily understandable way. He does not indicate what evidence he accepted and what evidence he rejected or why. He does not state findings of fact. Rather, he responds to the four grounds of appeal with a mixture of extracts from the evidence he had heard and reasons for his conclusion that the respondent was a suspect before he entered Dunfermline police office. Towards the end of his report the sheriff hints that his reading of certain productions points to an even more complicated background to the case than a consideration of the charges alone might suggest.
[4] The sheriff’s approach has deprived this court of what it looks for in a report on a decision from a court of first instance that it is called on to review: a succinct but comprehensive account of the point at issue, how it arose and how it was determined. As a result, with the assistance of counsel, the court has been obliged to piece these matters together from the available material. This is less than satisfactory.
The indictment
[5] The respondent faces two charges. The first is one of contravention of section 7(1) of the Sexual Offences (Scotland) Act 2009 by the sending to the complainer of emails of a sexually graphic nature without her consent. The second is a common law charge of extortion with, as an alternative, a charge of contravention of section 4 of the 2009 Act. Central to charge (2) is the allegation of a threat by the respondent that, in the first alternative, the respondent, and in the second alternative the complainer’s boyfriend, would be sexually assaulted, unless the complainer sent sexually explicit images of herself to the respondent. The explanation for charge (2) being drafted with different persons being specified in each alternative as the subjects of assault, would appear to be that the information given by the complainer to the police was to the effect that she had received emails which stated that a person identified as AR would be assaulted. The first alternative in charge (2) allows for the possibility that AR was the respondent. The second alternative allows for the possibility that AR was some other male person known to the complainer.
The objection
[6] The evidence to which objection was taken relates to what was said during telephone calls between the respondent and DC Murphy, the police officer investigating the complainer’s allegations, during the morning of 12 March 2013 and when the respondent subsequently attended at Dunfermline police office. It is averred in the respective minutes for the respondent that by at least the time of the telephone call made at about 10am on 12 March 2013 it must have been clear to DC Murphy that the respondent was a suspect in respect of the matters which were the subject of charge (2). Nevertheless when the respondent attended the police office he was interviewed in detail by DC Murphy without being cautioned and without being advised of his right to the services of a solicitor. He was then taken to the charge bar of the police office in order to be detained in terms of section 14 of the 1995 Act. While awaiting the documentation of his detention and thereafter but prior to interview under tape recorded conditions, he was again asked questions by DC Murphy despite not having been cautioned and not having been advised of his right to receive legal advice. It is further averred that he was given unspecified inducements to co-operate with the police. While not articulated in precisely these terms, in essence the basis of the objection was two-fold: that the evidence had been elicited by unfair police questioning; and that it had been obtained at a time when the respondent was effectively in police custody but had not yet been afforded the opportunity of obtaining legal assistance, in contravention of the right guaranteed by article 6.3(c) of the European Convention on Human Rights.
The sheriff’s decision
[7] The operative part of the court minute of 7 November 2014 is in these terms:
“Having heard the respective submissions on the defence minute allows same; Finds that the accused’s police statement and subsequent procedure is deemed inadmiss[i]ble”.
The advocate depute invited the court to read this wording (a) as indicating that the sheriff had determined both minutes and (b) as recording a finding by the sheriff that evidence of what had been said during the telephone call at about 10am on 12 March 2013 and everything narrated in the minutes as having occurred thereafter, including the respondent’s attendance at Dunfermline police office, was inadmissible.
The scope of the appeal
[8] In its note of appeal the Crown appeals “against the decision to sustain the minute”.
[9] There follow four grounds of appeal. The advocate depute explained that the Crown was insisting only on the first two, its object being limited to the leading of evidence to allow the inference that the person who attended at Dunfermline police office was the same person as had spoken to DC Murphy by telephone earlier that morning. The Crown no longer proposed to lead evidence of the respondent’s answers to questioning after he arrived at Dunfermline police office. On this approach it becomes unnecessary to consider the compatibility minute.
[10] The two grounds relied on by the advocate depute are set out in the note of appeal are as follows:
“(i) That the learned sheriff erred in holding that the respondent was a suspect at the time he was spoken to by telephone by DC Gary Murphy on 12 March 2013. At the time of the conversation the police were investigating the possibility that a person known as [AR] had been the subject of a sustained sexual assault. The only contact details that the police had for the said [AR] was a telephone number. Due to the nature of the offences reported to the police on 11 March 2013 the police were concerned for safety and wellbeing of the said [AR]. The police did not know [at] the time of the telephone conversation that the said [AR] was in fact the respondent.
(ii) That the learned sheriff erred in holding that the respondent had been tricked into attending at the police office. The police officers dealing with the inquiry required to confirm the identity of [AR] and at the time when they asked the respondent to attend at the police office no officer had made physical contact with the person [AR] and given the nature of the reported offences the police wished to confirm that he was safe and well”.
Submission for the appellant
[11] In respect of ground 1, the advocate depute submitted that during the telephone call by DC Murphy to the respondent at 10am on 12 March 2013, DC Murphy was carrying out preliminary investigations as suspicion had not yet centred on the respondent as a suspect. She accepted that DC Murphy directed the respondent to attend the police station and told him that this was in order that DC Murphy could check that the respondent was safe and well. The telephone call was merely part of the investigation and suspicion had not crystallised on the respondent. There was no unfairness to the respondent. The advocate depute explained that the Crown wished to lead evidence about what the respondent said during the telephone conversation to DC Murphy and such evidence was admissible.
[12] Under reference to Gilroy v HM Advocate [2013] HCJAC 18, the advocate depute submitted that the decision as to whether or not the respondent was a suspect at the material time was not a discretionary decision of the sheriff. It was a decision of mixed fact and law. She accepted that the sheriff who heard the evidence had been best placed to assess the facts, but submitted that it was plain from the evidence of DC Murphy that DC Murphy did not crystallise his suspicions and did not conclude that the respondent was a suspect until the end of the telephone call after certain admissions had been made by the respondent. The advocate depute relied on the evidence given by DC Murphy both in relation to the first and second grounds of appeal.
Submission for the respondent
[13] Counsel for the respondent submitted that regardless of the deficiencies in the report by the sheriff, it was plain that, having heard the evidence from the two police officers and the respondent, the sheriff accepted the evidence of the respondent and did not accept the evidence of the police officers and in particular the evidence of DC Murphy. The sheriff recorded the evidence of DC Murphy in his report. The sheriff however did not accept that evidence. The sheriff reached his conclusions on the basis of all the evidence before him as he was entitled to do. From that evidence, the sheriff concluded that DC Murphy must have regarded the respondent “or his alter ego [AR] as a suspect at the time of calling him”. The sheriff did not accept the evidence of DC Murphy that the respondent did not become a suspect in the mind of DC Murphy until the end of the telephone call. The sheriff concluded that in effect DC Murphy had decided that the story of abduction and sexual torture had been made up, prior to the telephone call. The sheriff concluded from all the evidence that DC Murphy had thought that he was phoning the person who was the sender of the emails and not the “victim” of an abduction and torture. The sheriff accepted that the terms of the emails of which DC Murphy was aware prima facie suggested that the sender of the emails had committed a criminal offence. Counsel submitted that the sheriff was entitled to conclude from all the evidence that as at the commencement of the telephone call the respondent was a suspect. The sheriff was also entitled to conclude on the basis of the evidence that DC Murphy had misinformed the respondent about the reason why he should attend at the police office. The respondent was not a “victim” but a suspect and the police failed to advise him of his legal rights. The evidence to which objection had been taken was inadmissible and the sheriff was correct in his conclusions.
Decision
[14] The position of the Crown in this appeal is based on what we consider to be a correct premise: that evidence of what an accused person has said to police officers or done in response to some action on the part of police officers will only be admissible in evidence against that accused person if it is, in all the circumstances, fair that it should be admitted. One aspect of this is that anything said in response to questioning by someone who has come to be suspected as the likely perpetrator of a particular crime may be held to be inadmissible unless the person has first been informed of his right to remain silent and the consequences of his waiver of that right. A means of doing that is to give a full common law caution. It is because of those uncontroversial propositions that in the present case the Crown seeks to displace what it takes to be the findings underpinning the sheriff’s decision: that the respondent was a suspect at the time when he was spoken to by telephone by DC Murphy; and that the respondent had been tricked into attending the police office (or, as the sheriff puts it in his report, that the respondent had been ordered to attend Dunfermline police office under false pretences).
[15] The difficulty for the Crown in this appeal is that it is attempting to set aside what are findings of fact. The advocate depute drew attention to what was said by the Lord Justice Clerk when giving the opinion of the court in Gilroy v HM Advocate 2013 JC 163. There, at para [59], the Lord Justice Clerk explains that determining whether the stage has been reached whereby a case is being compiled against a suspect rather than an individual is being questioned involves the making of a judgment; it is not a matter of exercising a discretion. Therefore, in order to review such a determination it is not necessary that the appellate court be able to categorise the determination as unreasonable; it is sufficient that it can be regarded as wrong. However, the matter remains one of fact and primarily one for the judge of first instance. Here, whatever may be the deficiencies in his report, it is clear that the sheriff found that, in DC Murphy’s mind, the respondent was a suspect by the time of the 10am telephone call; that DC Murphy had accepted that the story of abduction and sexual torture had been made up; and that DC Murphy’s instruction to the respondent to attend at the police office had nothing to do with concern as to anyone’s wellbeing. To the extent that DC Murphy had given evidence to different effect the sheriff had not believed him. While the Note of Appeal asserts that the sheriff was in error and avers what would be the Crown’s version of events, the advocate depute was unable, at least with the material at her disposal, to explain why the sheriff was not entitled to make the findings that he had. That being so and the matter being one of fact for the sheriff, the appeal must be refused.