THE APPLICATION UNDER SECTION 3(3)(B) OF THE DOUBLE JEOPARDY (SCOTLAND) ACT 2011 BY HER MAJESTY'S ADVOCATE AGAINST FRANCIS DAVID AULD
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 18
MA4/15
Lord Justice General
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LADY DORRIAN
in
in the application under section 3(3)(b) of the Double Jeopardy (Scotland) Act 2011
by
HER MAJESTY’S ADVOCATE
Appellant;
against
FRANCIS DAVID AULD
Respondent:
Appellant: I McSporran (sol adv) AD, Lawrie; the Crown Agent
Respondent: Findlay QC, Young; Murray Hamilton and Chalmers, Glasgow
19 February 2016
Introduction
[1] In 1992, at the High Court of Justiciary in Glasgow, the respondent stood trial for the murder of Amanda Duffy. The jury, by a majority, found the charge against him Not Proven. In this application the Crown seeks to set aside the acquittal and grant authority to bring a new prosecution against the respondent. The application is based on section 3 of the Double Jeopardy (Scotland) Act 2011, relying on alleged admissions, made or becoming known of, after the date of acquittal. The Crown avers that this evidence strengthens substantially the case against the respondent; that, on that evidence, taken together with the evidence led at trial, it is highly likely that a reasonable jury properly directed would have convicted him; that the Crown has met the reasonable diligence test; and that it is in the interests of justice to set aside the acquittal and authorise a new prosecution.
Evidence at the trial
[2] Amanda Duffy, aged 19, was last seen alive in Regent Way, Hamilton, in the early hours of the morning of 30 May 1992 in the company of the respondent, most probably sometime between 0030 hours and 0100 hours. At about 2000 hours that evening her body was found by passers-by in an area of waste ground near a car park adjacent to Miller Street, Hamilton. She was lying on her back, naked from the waist down, with her face and head covered in blood. The area was badly disturbed, with broken branches and a lot of blood staining on the foliage. A clump of hair was adhering to a low branch 2 or 3 feet from the body. Branches/twigs had been inserted into her mouth, nostrils and vagina. The branch inserted into the mouth exited by the right ear. Where the body was found might be described as a secluded area but the general area itself was open and public.
[3] The deceased and the respondent had been at school together, and both attended Motherwell College. On the night in question, the deceased had been drinking with friends. She was described as being quite drunk by the end of the night. A similar description was attached to the respondent, who was drunk enough to be refused service in a public house. The group of which the deceased was a part came upon the respondent in the area of a shopping precinct, near the premises of Primark. He was sitting on a bench, beside an older man, John Farnan. In due course the group dispersed, and the deceased and the respondent remained in each other’s company. This was sometime between midnight and one o’clock. Some witnesses indicated that there was no physical contact between the respondent and deceased; others that they were embracing or holding hands. The respondent was wearing black Doc Marten’s, blue jeans, a white T-shirt with a Rolling Stones logo, and a blue denim jacket. He had a personal stereo with him, belonging to his father.
[4] One of the respondent’s friends, Brian Greig, spoke to a conversation with the respondent sometime after the events, the precise timing of which could not be identified. The respondent said that he met the deceased at Primark, and that they had walked round the precinct and sat on one of the benches, kissing. They heard someone shouting and the deceased said “It’s okay, it’s only Mark”. The respondent left the deceased with Mark and went home. During the evening of 30 May, Greig noticed new scratches on the respondent’s hands. The respondent explained that he had climbed “the Geronimo tree” (a tree which Greig used to climb as a child).
[5] None of the friends in whose company the deceased had spent the evening was called Mark. She had never had a boyfriend called Mark. From school she knew two boys called “Mark”: Mark Ashby and Mark Kane, but had no relationship with either. Called as witnesses, one said he had been at home with his girlfriend at the time, the other that he had been in Mitchell O’Brien’s pub with his girlfriend until about 1130 and had walked home via the precinct without seeing the deceased. He had seen the respondent in Mitchell O’Brien’s at about 10.30pm. Neither had been asked to provide DNA samples. John Farnan, beside whom the respondent had been sitting at the precinct, said he saw a young man known to him as Mark Stubbs in the precinct that night and assumed he was with the young people. He thought Mark Stubbs had given him a beer. Mark Stubbs was on the defence list, but was not called.
[6] Sometime after 1 am, about 1.30am, a witness going home heard a woman screaming in panic, for four or five seconds. The sound came from the area of the car park where the deceased’s body was later found, but the witness was unable to say exactly where.
[7] The defence elicited, without objection, evidence of the good character of the respondent. They also led evidence of a psychiatrist – the transcript of which is not available – in support of that good character.
Medical and Pathology evidence at trial
[8] Post mortem examination estimated the time of death at between 0130 hours and 1330 hours on 30 May. The deceased had extensive blunt force injuries to the head and neck, associated with inhalation of blood. The pattern of some injuries was consistent with a broad area of impact, such as stamping, while others suggested compression of the neck, such as by gripping. There was evidence consistent with asphyxia, which would have led to unconsciousness and which might account for the lack of defensive injuries. The branches in the mouth, nose and vagina were deliberately and forcefully inserted. Injuries to the anus and rectum were similarly due to penetration.
[9] An injury to the right breast was caused by a human bite. This would have bled and was inflicted within an hour prior to death. It would have been "excruciatingly painful”, and was an active, aggressive bite, rather than a "love bite". The dental features of the bite corresponded with those of the respondent, leading to the opinion that he had caused the bite. That he had done so was agreed by joint minute. On 5 June 1992, medical examination of the respondent revealed injuries on his arms, left hand and neck consistent with having been caused by fingernails.
Forensic evidence at trial
[10] Hair recovered at the scene was found to be very similar to samples provided by the respondent, as follows:
Evidence at trial of police interviews with respondent
[11] After the deceased was reported missing, the respondent was interviewed in the evening of 30 May. He said he had spoken to her at about 1am at Primark, and had walked up through Regent Way with her. They stopped outside Boots. He had left the deceased at about 1.30am when a male by the name of Mark had approached her. This male was either an ex-boyfriend or a friend. He was about 18 – 20 years old and tall with dark hair.
[12] Re-interviewed at 1220hrs on 31 May, the respondent said he had met the deceased in the precinct, and had been in her company in Regent’s Way. They sat on one of the benches and were kissing and cuddling. He left her at about 0130 when a male called Mark arrived. The respondent had been wearing a green Army jacket, a black T-shirt with a Harley Davidson motor cycle design, blue jeans and black biker boots.
[13] The respondent was detained on Friday 5 June 1992 at 9.40am. When asked about a blue denim jacket, he said that he had lost it on that same Saturday night. He showed police the undergrowth where he said he had lost it, but it was not found, either then or on a subsequent search. In a taped interview, he now said he had been wearing a denim jacket, a Rolling Stones T-shirt and Doc Marten boots. He denied ever being in the bushes where the body was found, although he had been in the car park. He had been kissing and cuddling with the deceased while sitting on a bench in Regent’s Way, and again in various shop doorways whilst walking slowly up the precinct. He was adamant about Mark arriving on the scene in the precinct. He said nothing about biting, and was not asked about the bite.
[14] The respondent’s position was that he had got home about 0200. His mother gave evidence that he was not home when she and her husband came home after 0100. She did not know when he came in, but heard him sneezing during the morning. She first saw him about lunchtime. His brother heard him coughing during the Saturday morning.
The arguments at trial
Crown
[15] The Crown argued that the evidence pointed to the respondent having murdered the deceased. She was last seen alive in his company, and the timing of the bite, which he admitted, indicated that she had still been in his company shortly before she was killed. The absence of blood on the bra suggested that it had not been worn after the bite, undermining the suggestion that the deceased had gone off with a man called Mark. The location of the 20 hairs at the scene, consistent with having come from the respondent, meant that they could only reasonably have come from the perpetrator. His change of position regarding his clothing allowed the Crown to suggest he had lied about losing the denim jacket and had instead disposed of it. Items in his possession were found to have traces of human blood on them, consistent with attempts having been made to clean them.
Respondent
[16] The defence relied upon the taped interview to put forward his account of events. The perpetrator must have been covered in blood, yet the suggestion was that only the jacket had been disposed of. It could not be said whose blood was on the watch or stereo, or when it had been deposited. There was only a low statistical possibility that the recovered hair came from the respondent, who told police that he had never been in the bushes at the locus. The hair on the deceased’s palm had not come from either the deceased or the respondent. He had not mentioned the bite when interviewed, but was not asked about it. There was no evidence that it occurred at the same time as the other injuries. The deceased had been drinking, so it was speculation to say that it would have been painful. Evidence of the respectable family background of the respondent and the psychiatric opinion obtained following his arrest supported the view that he could not have committed this awful crime.
The evidence upon which the application is based
[17] The evidence relied upon in support of the application comes from five witnesses: (i) Daniel McDougall; (ii) Alexander McCartney; (iii) Caroline Vandeleur (or Casey); (iv) Patrick Vandeleur; and (v) Paul McAteer.
Daniel McDougall
[18] This witness was an acquaintance of the respondent who was not interviewed during the original investigation. In his affidavit he states that a day or two after the murder, the respondent told him that he had been with the deceased that night. McDougall said that, as the last person seen with the deceased, he should go to the police. The respondent said he was not the last person, because a man named Mark had approached them, greeted him by name and started speaking to them. He did not know Mark but thought Mark must have known him from school. Mark said “Fuck off ya wee prick I’m shagging her.” When McDougall said he should have told Mark to “fuck off” the respondent had replied that he was not a fighter. He left the deceased with Mark and went home. McDougall warned the respondent that, if he could not prove that this person, Mark, had appeared, the respondent would get “done” with the murder, as the last person with the deceased. The respondent replied “I won’t get done with that, I’m too cute for that”.
[19] McDougall is not clear exactly when the conversation was, or where it took place. Only the two of them were present. There are significant discrepancies between the affidavit and his earlier police statement, in which he suggests that the conversation was initiated either by his girlfriend, or that of the respondent, both of whom were present.
Alexander McCartney
[20] McCartney is a retired prison officer who in 1992 was working at HM Remand Institution, Longriggend. In his affidavit he states that between 8 and 15 June 1992, when the respondent was remanded for further examination, they had a conversation which McCartney commenced by saying “it’s quite a heavy charge you’re in for.” The respondent replied “we were just fooling about and things got out of hand”. McCartney reported this to his supervising officer who said “It’s just hearsay, Alex, there’s nothing you can do about it”. McCartney understood that the evidence was not admissible. All those on remand for murder were treated as vulnerable, and therefore checked up on regularly. It was McCartney’s duty to chat to such prisoners to try to gauge their mood and “to determine if they were suicidal”. This conversation was part of that process: “I was trying to get him to open up so I could assess his mental wellbeing.” He had not noted the conversation.
[21] In the Crown’s application the statement by the respondent is recorded as having the words “and it just happened” appended to the end. This was not in the affidavit, where the more limited words above were used, with the comment: “I am certain these were the words spoken ….they have stuck with me all this time”. The Crown argues that in the affidavit he adopted the statement in which the longer version was given.
[22] In a number of statements, this witness insisted that the supervisor to whom he reported the exchange was Jim Black. In December 2012 it was explained to him that Jim Black had been retired by this time, but in a later statement, January 2013, he continued to maintain that the conversation had been reported to this supervisor.
Caroline Vandeleur and Patrick Vandeleur
[23] In 1992 Patrick Vandeleur was a member of a band “Kindred Spirit”, for whom the respondent acted as “roadie”. Caroline Vandeleur, his then girlfriend, states in her affidavit that on an occasion after the acquittal she was giving the respondent a lift when they passed a car wash in Ferniegair. The respondent said “that was where I was meant to have washed all my clothes” or words to that effect. She replied “aye that was another rumour”. Although not a car owner, or a driver, the respondent asked whether the cost of the car wash was still fifty pence. Some days later, having thought matters over, Caroline Vandeleur asked him “did you have anything to do with that lassie’s murder?” The respondent replied “that’s something that naebody will ever know”, adding “it doesnae really matter, she was ugly anyway”.
[24] Caroline Vandeleur also states that at around 5.30am on 10 July 1993 during the course of a telephone call a male voice with a local accent said to her “Caroline you’re next”. She did not recognise the voice but believed the caller to be the respondent. Shortly after that call, Patrick Vandeleur received a call in which a male voice said “Patrick, Patrick, Patrick” and “you thought Amanda was the last, well you’re next after Caroline”. Due to the timing and the content of the calls he thought the caller was the respondent. Only a small group of people, including the respondent, used his full name, or knew that Caroline was residing with him at that time. The calls were made after the Vandeleurs had made it clear they questioned the respondent’s innocence, and they had not fallen out with anyone else.
[25] This information was originally communicated to police in a series of statements in 1993. This led to a summary prosecution for breach of the peace and a contravention of section 43(1) of the Telecommunications Act 1984. The telephone calls referred to above formed part of that prosecution. The respondent tendered a plea of guilty, but the exact terms of the plea, or the charges, are unknown, since usual practice is to destroy all documentation relating to summary prosecutions after 10 years. The Crown initially intended to prove the terms of the plea, but given the evidential difficulties apparent in such a course, were content simply to prove the facts, giving due notice thereof by docket.
Paul McAteer
[26] He managed “Kindred Spirit”. He also drove a taxi. His affidavit states that in early 1993, the respondent, a passenger in his taxi, seized the radio microphone saying “I done it, I done it, I done it”. Seeing that McAteer was angry, he said “it’s all right, I never pressed the button”.
[27] The evidence from the Vandeleurs and McAteer indicate that prior to the trial, the respondent was a close member of their social circle, especially the Vandeleurs. Caroline Vandeleur refers to them as a “close knit group”. They had supported him through the trial, and the Vandeleurs attended it. After the acquittal, however, things changed. Based on his demeanour, his comments noted above, and local discussion about the case, they began doubting his innocence, and said that he was no longer welcome in their social circle.
The Legislation
[28] “Section 3 Admission made or becoming known after acquittal
(1) A person who, whether on indictment or complaint (the “original indictment or complaint”), has been acquitted of an offence (the “original offence”) may, if the conditions mentioned in subsection (3) are satisfied, be charged with, and prosecuted anew for—
(a) the original offence,
(b) an offence mentioned in subsection (2) (a “relevant offence”).
...
(3) The conditions are that—
(a) after the acquittal—
(i) the person admits to committing the original offence or a relevant offence, or
(ii) such an admission made by that person before the acquittal becomes known, and
(b) the High Court, on the application of the Lord Advocate, has—
(i) set aside the acquittal, and
(ii) granted authority to bring a new prosecution.
(4) The court may set aside the acquittal only if satisfied—
(a) in the case of an admission such as is mentioned in subsection (3)(a)(ii), that the admission was not known, and could not with the exercise of reasonable diligence have become known, to the prosecutor by the time of the acquittal in respect of the original offence,
(b) that the case against the person is strengthened substantially by the admission,
(c) that, on the admission and the evidence which was led at the trial in respect of the original offence, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence, and
(d) that it is in the interests of justice to do so.”
Submissions
Arguments re reasonable diligence
Crown
[29] The Crown has acted with due diligence. On the coming into force of the Double Jeopardy Act police were instructed to conduct a fresh inquiry into the murder. This was an extensive task, with inquiries continuing in July, August and September 2014. There was no reasonable basis, prior to acquittal, for the police or the prosecutor to interview associates of the respondent, fellow remand prisoners or prison officers. The extent and nature of a criminal investigation depends on all the circumstances of the case.
[30] At the outset of the re-investigation it was known that, post acquittal, the respondent had made the comments to the Vandeleurs which led to summary proceedings. This provided a reasonable basis for suspecting that he may have confided in others. A policy of tracing and re-interviewing witnesses led to identification of McDougall as an associate. His evidence became known to the police on 12 September 2012, and could not with reasonable diligence have become known earlier, there being no basis to interview him before that.
[31] In 2012, a police officer learned during an informal conversation that McCartney had relevant information and a formal statement was arranged. His evidence could not with reasonable diligence have become known sooner. There was no basis for interviewing him during the initial investigation. He did not report it because he thought it inadmissible.
[32] The remaining statements were made after the acquittal.
Respondent
[33] McCartney dealt with the respondent on a daily basis. McDougall was an associate. Reasonable diligence would involve them being spoken to at the time.
Admissibility of the statement to McCartney
Crown
[34] There is no rule that statements to a prison officer by a prisoner on remand are inadmissible. The test for admissibility of such statements is fairness. Renton and Brown, 24-55(e); Miln v Cullen 1967 JC 21; Tole v HM Advocate 2013 SLT 1227.
[35] There is no evidence that McCartney interrogated the respondent, cross-examined him, applied undue pressure, cajoled, trapped or bullied him into making the statement. Its admission would not be unfair. Fairness does not require that an admission to a prison officer must be under caution. The law is very jealous of the right of the charged prisoner, but the concern is to protect against those who might abuse their official position, ie police officers questioning an accused after charge to elicit evidence to prove or support their case. McCartney did not speak with the respondent as part of a criminal investigation, but in the ordinary course of his duties. His purpose was an innocent one.
[36] After reviewing the authorities, Alison, Practice of the Criminal law of Scotland (1833) comments (p 585):
“the result of these cases seems to be that conversations held, or confessions made in jail, are admissible evidence, provided they are proved to have been freely and voluntarily emitted, without promises or threats of any kind, and that the evidence of these was obtained without any premeditation or design laid by those having the custody of the establishment”.
Respondent
[37] The alleged statements to McCartney are inadmissible. Longriggend housed young prisoners who, being on remand, were under the care of the court. McCartney instigated the conversation and went straight to the matter of the charge, with no warning. This was a direct invitation to a remand prisoner to discuss the subject of the remand. He ought to have been warned and at the very least should have been told that conversations would not be confidential. Remand prisoners, especially young ones, are particularly vulnerable. They are under stress and may have no prior experience of the situation they find themselves in. The respondent was in the early stages of remand and was entitled to be protected against a prison officer going beyond his duty.
Do the statements constitute admissions?
Crown
[38] The statement to McDougall can be construed as an admission, since rather than deny responsibility the respondent appeared to accept his involvement, saying that he is “too cute” to get “done”. The statement “that’s something naebody will ever know” constitutes an admission. It makes no sense coming from an innocent person, who might reasonably be expected to deny it. The telephone calls can be construed as admissions, the implication being that the respondent murdered the deceased, and that the Vandeleurs would be next. It may be inferred that the respondent made them: the calls are to the same number, associated in timing, content and the identity of the caller as a local male, and in circumstances where few people knew that Caroline Vandeleur was living there.
[39] An admission for the purposes of the Act, which contains no definition, should be interpreted in accordance with case law which endorses a broad approach, recognising that not all admissions to murder will be clear and unequivocal. As the Lord Justice Clerk (Ross) observed in Greenshields v HM Advocate 1989 SCCR 637 at 642A:
“[i]t is not only clear and unequivocal admissions which have evidential value. It has often been said that if there is a clear and unequivocal admission of guilt, then very little evidence in corroboration of such an admission is required. That is not to say, however, that something less than a clear and unequivocal admission is of no value.”
That the alleged admission to McCartney may be subject to a number of interpretations is not fatal to its being termed an admission. In Stirling v McFadyen 2000 SCCR 239, a statement was “ambiguous” and “open to a number of constructions” but was capable of being an admission. Context is vitally important. That something less than a “full admission” may still be construed as a “confession” is recognised in the context of judicial examination. In that context, in McKenzie v HM Advocate 1982 SCCR 545 at 550, Lord Robertson found that, a “confession” is a “statement [which] is clearly susceptible of being regarded as an incriminating statement.”
Respondent
[40] The respondent denies that any of the statements were made, but in any event, argues that the statements are too ambiguous to be construed as admissions. The words uttered must be capable of being construed as an admission of involvement in the actual commission of the crime charged. For example "I was there but I never touched him" could not be construed as an admission.
[41] Comments which may seem callous or indifferent to the fate of the victim or even showing approval of what has happened cannot be construed as admissions. The comment “I won’t get done with that, I’m too cute for that” is manifestly not an admission. It was made against the background of a clear and unequivocal exculpatory statement.
[42] Esto the statement to McCartney is admissible, it does not constitute an admission. The Crown’s submissions ignore the defence position that he had contact with the deceased, both were under the influence of drink, and that he placed a love bite on her breast.
[43] So far as the Vandeleurs and McAteer are concerned, the statements do not constitute admissions. There is no context to the statements made in the taxi. All these comments must be viewed against the background in which they were made, and the respondent’s feelings of betrayal. This was a 20 year old young man, tried for, and acquitted of, the gruesome murder of a young female, after which he was subjected to widespread hostile publicity, and found himself at the centre of a political campaign to abolish the not proven verdict. He was presented as a man who had got away with murder, rather than one acquitted following a fair trial. His friends deserted him. He could not understand why, and felt hurt, let down and disappointed.
Whether the case is substantially strengthened by the admissions
Crown
[44] The Crown argue that the admissions have more than a marginal or trivial effect on the case. In the context of a circumstantial case, admissions add weight and substance. Their effect mitigates the evidential weaknesses in the original forensic evidence. They throw a different light on the respondent’s character, enabling the Crown to counter the line that nothing in his character or background supported his involvement in the killing. It is the strengthening effect that the admission has in the context of the original evidence that is important. An admission has even greater effect when no admission evidence was led at the original trial.
Respondent
[45] The remarks are all trivial or marginal and add no weight or substance. There are deficiencies in the evidence which are referred to in more detail in the next section.
Whether it is likely that a reasonable jury properly instructed would have convicted
Crown
[46] This condition focuses on the combination of the evidence led at the original trial and the new evidence. Accordingly:
“[t]he court requires to have regard to what it considers to be the evidential and potentially persuasive effect of the new evidence in combination with the evidence led at trial” (HMA v Sinclair 2015 JC 137 para 99]
The admissions bolster the existing evidence, increase its evidential and persuasive effect, and provide a strengthened evidential basis on which a jury could conclude that the respondent was the perpetrator. The admissions increase the persuasive effect of the existing forensic evidence. They undermine the assertion that this was an ordinary young man, with nothing in his “makeup” to suggest that he was capable of such a brutal act.
[47] The admissions were made to different people on different occasions and are spoken to by witnesses with no connection to the deceased or her family. It cannot be said that they were generated as a result of collusion. They have significant probative value and are reasonably capable of being believed by a jury.
Respondent
[48] The evidence is so limited as to make it highly unlikely that it would have impacted upon a reasonable jury to any significant extent, especially given that the original jury acquitted. No reasonable person would interpret the remarks as an admission to murder. The Vandeleurs are unlikely to have been accepted. The Crown cannot prove that the voice was the respondent’s, relying on assumptions for proof. McAteer gave inconsistent statements. McCartney is either dishonest or wholly unreliable. It is inconceivable that he would have kept no record of the remark. McAteer made two statements to the police, in July 1993 and 2012, in which the taxi incident, said to have occurred in early 1993 was not mentioned.
Whether it is in the interests of justice to set aside the acquittal
Crown
[49] The advocate depute referred to the non-exhaustive list of factors relevant to this aspect of the test in HMA v Sinclair at para 103. The interests of justice require that the public have confidence in the criminal justice system.
[50] The crime is one of the utmost seriousness, involving a particularly horrifying and brutal murder. The sadistic nature of it caused enormous distress to the deceased’s family and shock and revulsion to the public at large. The admissions are compelling, and their nature and strengthening effect make it in the interests of justice to bring a new prosecution.
[51] A fair trial can be held notwithstanding the passage of time. Nine witnesses have since died but no prejudice would arise from their non-availability. Most did not testify at the trial. In any event, their evidence can be spoken to by others. In some instances, other experts have been instructed and where necessary evidence could be led under s 259 of the 1995 Act. All defence witnesses and productions are still available.
[52] Regarding productions, the scientific comparisons carried out by witness June Guinness are not available. Production 45, a newspaper, is not available, but a copy is. Property registers reflect the return of property, but copies of the originals are available.
[53] Of label productions, only a small number remain. Casts of dental impressions are not available, but life sized, scale photographs are. The 4 hair roots (133-136), some blood samples (129-132) and 6 of the 20 recovered hairs, are available where unused through analysis. Some cassette or video tapes are available. All the clothing of the deceased, and all twigs and vegetation no longer remain, but any effect of this can be mitigated by photographs, reports, and a video of the locus showing the deceased in situ.
[54] The passing of time will have ameliorated the effects of any prior prejudicial publicity, and would not prevent a fair trial. The trial process itself contains inherent safeguards. The proceedings are protected by the Contempt of Court Act.
Respondent
[55] In the event that the relevant conditions were met, it would be for the court to determine whether it would be in the interests of justice to grant the application. If it were granted, the respondent would require the protection of the Contempt of Court Act.
Decision
Issues:
whether the statements constitute admissions
[56] The first condition which must be satisfied for the operation of section 3 is that contained in section 3(3)(a)(i), that:
“(i) the person admits to committing the original offence ….”
We do not consider that it is correct, as the advocate depute submitted, that any “statement susceptible of being regarded as incriminating”, will necessarily qualify within the terms of section 3(3). Much will depend on the circumstances. It is important to note that the cases in which that formulation was adopted, McKenzie v HMA and Moran v HMA 1990 SCCR 40, were addressing the question whether the statement was an “extrajudicial confession (whether or not a full admission) relevant to the charge”. They were dealing with a statutory provision in very different terms to the one here, and we consider that it would be difficult for us to take too much from those cases as to what constitutes an admission for present purposes.
[57] It is clear that any statement relied upon for the purposes of section 3 must be such as can fairly and reasonably be construed as an admission that the individual committed the offence. What may be sufficient for that purpose will no doubt vary according to circumstances, but it is worth bearing in mind that this is the import which the statement must bear. In that regard the context in which the statement is made is a vital consideration.
[58] In both Greenshields v HMA and Stirling v McFadyen, the statements were considered, in the circumstances in which they were made, to be sufficient to amount to an admission, even although they may have been capable of bearing another meaning. However, it is critical to note the context in which the statements were made. In the first case, the statement relied upon was a response made to caution and charge. The charges, which were of murder, and subsequently attempting to pervert the course of justice by dismembering the body, were each specified in detail. In the second case, the complaint was one of lewd and libidinous practices by a Sunday school teacher. The nature of the allegations, which later formed the charge faced by the accused, were again put to the accused in detail – in this case by the minister of the church concerned. In circumstances where the replies were made in response to the assertion of a detailed allegation, it is hardly surprising that the court considered that they could be viewed as admissions. In Greenshields the court said this:
“The charge included a charge of murder in substantially the same terms as in the indictment. It then proceeded to charge that with intent to conceal the body and in the commission of said murder he did carry out the further acts which are set out after the allegation of murder in the present indictment with intent to pervert the course of justice and he did attempt to pervert the course of justice. In reply the panel said, according to these witnesses:
'That’s it, isn’t it. You don’t think I did it myself do you; but I'm telling you nothing about it until I see my lawyer.'
The first question must have been for the jury to determine whether the reply constituted an admission at all, and if so an admission of what.”
and in Stirling:
“As we have said, what was put to the appellant was a clear and specific allegation of indecent assault and to that allegation the appellant made the statement which he did. In our view, while it is true that the statement may be ambiguous and could be open to a number of constructions, we cannot say that no reasonable sheriff could possibly have come to the conclusion that this was an admission.”
The fact that the replies in each case were made in response to specific allegations meant that they could reasonably and fairly be construed as admitting the offence, even if somewhat equivocally worded. With the exception of the remark allegedly made to Mr McCartney, to which we shall return, the situation here is quite different.
[59] In the case of the confrontation of the respondent by Caroline Vandeleur the response cannot be construed as an admission. She reports asking him “did you have anything to do with that lassie’s murder?” but the response “that’s something that naebody will ever know”, is not an admission, and the gratuitous insults added thereafter, whilst they may indeed be cruel and ungenerous, cannot alter the character of what went before.
[60] None of the remaining statements involve confronting the respondent with the allegations.
[61] It is important to recognise that the context in which the remarks to McDougall were made was that the respondent had made a clearly exculpatory statement to him, indicating that he had not been the last person with the deceased, the individual named Mark had been. In the context in which it was made, it is simply not possible to attribute to the respondent’s remark the character of an admission of murder. The Crown’s approach seems to be that if the answer is not a categorical denial it must be construed as an admission. That is simply not tenable. So far as the phone calls to the Vandeleurs and the statements in McAteer’s hearing are concerned, the background context is again very important. The respondent was already isolated in the community and these former friends had deserted him, and made it clear that they now believed he had been guilty of the offence for which he was acquitted. We proceed on the basis that the background circumstances are such that it would be a reasonable inference that the respondent had made the telephone calls, but those very background circumstances indicate that the respondent and the Vandeleurs had “fallen out”, and whilst the phone calls were no doubt meant to frighten the Vandeleurs by capitalising on their belief that he was a murderer, and to enhance that fear, they cannot reasonably or fairly be taken to amount to an admission that this was so. The same reasoning applies to the incident with McAteer. These remarks and the phone calls seem to fall more into the category of misguided, unpleasant and immature conduct. Having regard to the whole circumstances in which all these statements were made, we do not think they can reasonably and fairly be construed as admissions.
[62] The position relating to McCartney is rather different. In our view the comments made to him could be construed as an admission, even without the addition of the words in the statement which are not referred to in the affidavit, because the context was one in which the charge upon which he had been remanded was specifically referred to.
Whether the statement to McCartney is admissible
[63] The advocate depute was correct to submit that there was no rule that any statement made by a prisoner on remand to a prison officer was inadmissible, and Mr Findlay did not seek to suggest otherwise. The overall test for the admission of a statement such as this is one of fairness. As will be apparent, the whole circumstances of the case will be relevant. The absence of cross examination or interrogation, and the fact that the purpose of initiating a conversation was an innocent one, are all relevant factors, but they are far from decisive in the way in which the advocate depute appeared to think. The present case involved a young man remanded on a charge of murder, who was engaged in conversation by a prison officer, with the specific purpose of eliciting a response, where the subject matter of the conversation was the very charge upon which he had been remanded. As the advocate depute correctly submitted, the law is very jealous of the right of the charged prisoner. In submitting that the statement was admissible, he was at pains to stress that McCartney was not a police officer, was not acting in an investigative capacity, and that his purpose was to gauge the respondent’s state of mind. The case of Fraser & Freers v HM Advocate 1989 SCCR 82, upon which the advocate depute relied, proceeded on a concession and the remarks of the court are obiter. In Van Lierop v McLeod 2000 SLT 29, the individual had not been charged. Neither case detracts in any way from the clear legal principle that an individual in the position of the respondent is protected from any further investigation of the charge. Had a police officer instigated this conversation there can hardly be any doubt that the response would be inadmissible. The initiating remark can be viewed as a “prompt” to speak: what else might the response be expected to relate to but the subject matter of the prompt? The fact that the witness is a prison officer, and not a police officer makes little difference. The context of this conversation robs the statement of any voluntary character. The initiating remark constituted an encouragement to a remand prisoner to discuss the subject matter of his remand. Had the witness been a police surgeon, prompting a conversation on a matter not connected with the health of the examinee, the result would be equally inadmissible. Had the witness wished to inquire into the health of the respondent, he might have initiated such a conversation in any number of innocent ways. Instead of asking a question relating to the respondent’s health or well-being, he went straight to the subject matter of the serious charge upon which the respondent had been remanded. It is clear from his affidavit that the witness initiated the conversation with a view to eliciting a response. That much the advocate depute accepted. He did not accept that the remark was either intended or likely to elicit a response relating to the charge. We are unable to accept that. It is obvious that any response to this opening gambit would be likely to relate to the same subject matter, namely the charge against him. A prison officer dealing with a remand prisoner, especially a young person, needs to think very carefully about the subject matter upon which he opens conversation. Here, he went straight to the charge which the respondent was facing. The response cannot be viewed as voluntary or spontaneous, and is inadmissible.
The remaining tests under section 3
[64] In respect of all the statements other than that to McCartney, the terms of section 3(3)(a)(i) are not met, and it is not necessary in respect of those statements to consider the remaining conditions under section 3(4) which would have to be satisfied before an application such as the present could be granted. The statement to McCartney is capable of being construed as an admission, but is not admissible in evidence. In HMA v Sinclair, where an issue arose as to the admissibility of buccal swabs, the court held that the evidence did not, for the purposes of an application such as this, require to be put before the court in any particular manner, so long as, at a trial, it could competently be placed before a jury. That is not the case here: the evidence is not capable of being placed before a jury in an admissible form. It therefore cannot be said to strengthen the case against the respondent, and is incapable of having any effect on a jury. The remaining conditions of section 3(4)(b) and (c) thus cannot be met. Had the statements in question been admissible admissions, we would have had no difficulty in concluding that the reasonable diligence test (3(4)(a)) had been met, but that question does not now arise.
[65] We do not need to address whether such oblique statements as those made to the witnesses other than McCartney could be viewed as adding weight and substance to the case, nor do we need to assess what evidential or persuasive effect any of the evidence might have on a jury. Much of the evidence presents a challenge, from the point of view of satisfying a jury of its reliability and persuasive effect. On the question of the interests of justice, had that matter arisen, the court would have had to be cognisant of the fact that the vast majority of label productions of any importance have been destroyed, and could not now be subjected to any enhanced DNA analysis, by either party.
[66] In reaching its decision the court is acutely conscious that this is a very delicate matter. The case is one which caused great distress to the family of the deceased, and shock within the community. The court must look at the evidence upon which the application is based, and the evidence led at the trial. It cannot be swayed by considerations of other, possibly strengthening, evidence, which may be in the hands of the Crown but which has not formed the basis of an application. It is a matter of concern that DNA evidence of such a kind is referred to in the application, when, as the advocate depute frankly conceded that a decision had been taken that this material could not support a new evidence application under section 4 and requires to be left out of account. It is not helpful for such material gratuitously to be included in an application such as this, where the law is very clear that it is only in the interests of justice to set aside an acquittal where all the conditions imposed by Parliament have been met. In this case they have not, and the application must fail.