Lord Eassie

Lord Menzies

Lord Wheatley

[2012] HCJAC 157

Appeal No: XC797/11


delivered by LORD EASSIE










Appellant: Carroll, solicitor advocate, McClure; Drummond Miller LLP

Respondent: Prentice QC, solicitor advocate, AD; Crown Agent

29 November 2012


[1] The appellant in this appeal, which follows a referral by the Scottish Criminal Cases Review Commission, was tried in the High Court of Justiciary in May 2009 on an indictment containing two charges. The first charge alleged that on 9 March 2008 within a flat at an address in Glasgow the appellant supplied cocaine to AJM, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971. The advocate depute conducting the prosecution withdrew that charge in the course of the Crown case. The second charge on the indictment libelled that on the same date and in the same flat the appellant -

"(002) ...did assault AJM, residing there and did seize hold of her arm, pull her into the livingroom, kiss her face and neck, force her to the floor, lie on top of her, hold her down, pull her hair, pull down her top and bra, kiss, lick and handle her body, struggle with her, pull down her trousers and underwear, repeatedly force her legs apart, lick her private parts, insert your fingers into her private parts, follow her into a bedroom, force her onto a bed, lie on top of her, seize her by the throat, hold her down, forcibly remove her underwear tearing same, all to her injury and .. did repeatedly rape her".

The jury, by a majority, convicted the appellant of that charge but under deletion of the word "repeatedly", which occurs in the last line.

[2] The largely undisputed background to the events which occurred in the flat on 9 March 2008 may be summarised from the evidence of the complainer and from the appellant who, in addition to undergoing two interviews with the police (the terms of which were before the jury), gave evidence at the trial. It appears that at around Easter 2007 the appellant and the complainer formed a relationship which lasted for a short number of weeks during the course of which the complainer fell pregnant. When the appellant was advised of the pregnancy, it appears that he wished to resume the relationship but the complainer was unwilling to have further contact, at least until the baby was born. Nonetheless, in October 2007 she and the appellant, along with the complainer's mother, met to purchase a pram for the baby. The baby, a boy, was born in January 2008 and the appellant visited the complainer and his baby son on the day following the birth, the complainer having arranged for him to be told of the birth some minutes after its having taken place. Arrangements were made for the appellant to have contact with the baby and in February 2008 the complainer and the appellant resumed their relationship for a period of some three weeks before it was terminated by the complainer. During that resumption they had sexual relations. The appellant continued to see the baby after they ceased to live together and on the evening of 1 March 2008 the appellant looked after the infant while the complainer went out with friends.

[3] It was also arranged that on 8 March 2008 - the day preceding the date libelled in the charges - the appellant should again look after his son. He arranged to, and did, meet the complainer in the centre of Glasgow and took care of the baby while the complainer went to have her hair dressed. The appellant later went to the flat specified in the charge (in which the complainer lived) at about 1930 hours whereupon the complainer left to go out to a party. She returned from the party at sometime between 0130 hours and 0230 hours on 9 March 2008. The complainer accepted in her evidence that when she returned home after the party she was "under the influence" of alcohol and may have been slurring her speech; she had also taken cocaine at the party. She opened a bottle of wine and she and the appellant sat down to talk and to drink the bottle of wine. They also consumed some cocaine.

[4] At this point the respective accounts begin significantly to diverge. In brief, according to the complainer, the appellant began to hug her (which she did not wish). Eventually she went to the bathroom. She was followed there by the appellant. He then began to rant at her, telling her she looked a mess. He noticed blood on her jeans which the complainer said was menstrual blood but the appellant accused her of having had sexual relations earlier that evening.

[5] According to the complainer, the appellant then grabbed her arm and pulled her back into the living room. There thereupon occurred, according to the complainer, what can briefly be described as rape involving some physical force. Following that episode in the living room the complainer then ran through to the bedroom. The complainer's evidence on this chapter is more fully summarised in paragraph 14 of the Commission statement of reasons[1].

[6] The complainer's account of what occurred after she had run through to the bedroom was to the effect that she was followed there by the appellant whereupon - again putting matters very shortly - a second forcible rape occurred. A more

detailed summary of the complainer's evidence may be found in paragraphs 15 and 16 of the statement of reasons[2].

[7] The different version of events given by the appellant was to the effect that while drinking the wine and consuming the cocaine the complainer appeared to be flirting with him and suggesting getting back together. They then started kissing and - again putting matters very shortly - they engaged in consensual sexual intercourse in the living room for a time before the complainer expressed reservations whereupon their coition stopped. A fuller summary of the appellant's evidence is contained in paragraphs 31 to 33 of the statement of reasons[3].

[8] Following the cessation of that sexual activity in the living room the appellant's account was at one with that of the complainer to the extent that matters then moved to the bedroom of the flat. Having first studied the log of calls on the complainer's mobile telephone - which the appellant accepted he had no right to do - a quarrel then ensued which involved his taking her by the arms and later grabbing hold of her by her wrists. He grabbed at the waistband of her underwear which led to the waistband being ripped. The appellant then picked up the baby who had awakened; he declined to leave and the complainer went to the flat of a neighbour BA. After a time the complainer returned, picked up a wrap of cocaine and told the appellant to go because she had telephoned to the police. Again, a slightly fuller summary of the appellant's account of the episode in the bedroom is to be found in paragraphs 36 and 37 of the statement of reasons[4]

[9] The appellant did not leave the flat after being told that the police had been summoned. He began to feed the baby. And on arrival the police took an initial statement from him, following which he was, at 0515 hours, arrested for "domestic assault".

[10] Later in the morning of 9 March 2008, at 0808 hours, while in custody following his arrest for domestic assault, the appellant was interviewed at length by police officers in respect of the allegation now made of his having raped the complainer. He was not offered any opportunity to obtain any legal advice before

being interviewed, as was then the practice prior to the decision in Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13. Evidence of the terms of the two

successive interviews conducted by the police on 9 March 2008 was adduced and relied upon by the Crown at the trial.

The grounds of appeal

[11] Two grounds of appeal were advanced before us.

[12] The first of those grounds may be referred to as the "post Cadder ground". It relates to the use made at the trial by the prosecution of the terms of the interviews conducted by the police on 9 March 2008, in circumstances in which the appellant had not been afforded the opportunity of receiving legal advice. The second ground of appeal relates to the rationality of the jury's verdict in the sense that, against the evidence at the trial, the deletion of the word "repeatedly" rendered the verdict ambiguous and incapable of satisfying the requirement under Article 6 of the European Convention on Human Rights for a reasoned judgment. This ground may be conveniently referred to as "the reasoned judgment" ground.

The post Cadder ground

[13] It is accepted by the Crown that the leading of evidence of the interviews which had been conducted by the police on 9 March 2008 without any opportunity having been given to the appellant to obtain legal advice constituted a breach of the appellant's right, under Article 6 ECHR, to have such an opportunity to obtain legal advice. The Crown further accepts that, on that account, evidence of the questioning of the appellant by the police was inadmissible. The issue arising in respect of this ground of appeal is therefore concerned with the consequences of that conceded breach. There was no dispute between the parties to the appeal that the test to be applied was that set out by Lord Hope of Craighead at paragraph 64 of the opinion which he delivered in Cadder v HMA:

"[64] Counsel for the appellant invited the court simply to allow the appeal and quash the conviction. But that would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all these circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them (McInnes v HM Advocate)...."

It was also accepted that the test described in McInnes v HM Advocate [2010] UKSC 7; 2010 SC(UKSC) 28 was essentially the same test, the formulation adopted by Lord Rodger of Earlsferry being that:

".. an appellate court will only hold that the Crown has been unfair and quash the jury's verdict as a miscarriage of justice if there is a real possibility that if the statements had been disclosed, a jury might reasonably have come to a different verdict".

[14] In our view, in the application of that test, at least in a case such as this, an appropriate starting point is an examination of the role which the evidence of the questioning of the accused played in the prosecution case. And a useful starting point in that examination may well be the extent to which that evidence was invoked in the prosecutor's address to the jury.

[15] From the transcript of that address delivered by the advocate depute at the appellant's trial, it is evident that the advocate depute saw a number of the appellant's answers to the questions from the police as providing important corroboration of the prosecution case. (See, for example, page 5, pages 39 to 41 and page 66 - the latter no doubt referring back to various earlier points in his speech in which the advocate depute adverted to what he saw as important admissions). It was understandably not suggested by the solicitor advocate for the appellant that, absent those admissions, the Crown case would have been vulnerable to a no case to answer submission but it was, he submitted, relevant to take note of the fact that the trial advocate depute regarded what had been said by the appellant at interview as a significant corroborating element of the Crown case.

[16] But additionally, in his address to the jury the trial advocate depute gave much prominence to attacking the credibility of the appellant's account of events. While we recognise that a "page count" may be a crude instrument of measurement, it has to be noted that, employing that instrument, approximately one-third of the entirety of the trial advocate depute's speech was devoted to attacking the credibility of the appellant, very largely on grounds stemming from the terms of the police interviews and the deployment which the trial advocate depute had made of them in his cross examination of the appellant.

[17] It is appropriate therefore next to have regard to the way in which the trial advocate depute approached the appellant's testimony. Mr Carroll, for the appellant, submitted that the trial advocate depute had used the terms of the police interviews as the basis for a prolonged, sustained attack on the credibility of the appellant, the advocate depute's contention being that the appellant was throughout a liar. An examination of the transcript shows that the trial advocate depute began his cross examination with the bald accusation to the appellant that he was "a liar"; and the bulk of the subsequent cross examination by the advocate depute (which in transcript consists of 123 pages, the examination in chief being 75 pages) consisted of questions suggesting either some inconsistency between the terms of the appellant's evidence and what he had said earlier to the police or a failure to mention some matter, to which the appellant had spoken in evidence, but which had not been mentioned by him to the interviewing officers. Mr Carroll stated that in the course of his cross examination the trial advocate depute had referred on 42 occasions to the terms of what was said in the police interviews. We have not conducted a check of that arithmetic, but in general terms it accords with our assessment from the transcripts that at the trial the prosecuting advocate depute attached major importance to the interview evidence. As we have already mentioned, in his speech to the jury the advocate depute, apart from invoking some of the admissions in the interview as corroborative elements, devoted a large portion of his address to an attack on the truthfulness of the appellant deploying in that exercise the terms of the interviews.

[18] In resisting the appeal the advocate depute before us invoked all of the other evidence against the appellant, which might be supportive of the complainer's account. First, he referred to evidence of the distressed state of the complainer and a de recenti complaint of rape spoken to by the neighbour BA. There was also evidence from a police officer who attended in the early hours of the morning of 9 March 2008 of the complainer being distressed and the officers having observed injuries in the shape of "grab marks" on the complainer's wrist. The medical evidence following examination of the complainer was corroborative of assault. The scientific evidence disclosed the presence of the appellant's semen within the complainer's vagina. There was also ex post facto evidence of the complainer's underpants being stained with both blood and semen. There was also evidence given of the damaged state of the complainer's underpants.

[19] We of course recognise that taken in isolation and without reference to the appellant's account of events all of these adminicles of evidence give material support to the complainer's account to the extent that a court might say that the Cadder consequences test should be answered adversely to the appellant. However, given the nature of the appellant's version of events - both so far as emerging from the police interviews and spoken to in his testimony to the court - we do not consider that one can legitimately view those aspects of the evidence to which the advocate depute referred in such isolation. The appellant's version entailed a significant quarrel or row in the bedroom, in which there was an admitted element of assault in respect that the appellant grabbed the complainer by her wrist. So the evidence of a distressed state and the evidence of injury was - to at least some extent - open to explanation by the appellant's version of events. The scientific evidence respecting the presence of DNA and blood on the complainer's underpants was not inconsistent with the appellant's version of events. Similarly the appellant's account offered an explanation of the damage to the complainer's underpants, as being an aspect of the quarrel in the bedroom.

[20] It may possibly be that recognition that all of these adminicles of evidence were open to explanation, to a not insignificant extent, by the appellant's own testimony was a consideration prompting the trial advocate depute's forensic decision to attack the credibility of the appellant, using the terms of the police interviews as the basis of that attack. In doing so he necessarily made those interviews a central piece of the Crown case. On any view the terms of the police interviews were clearly presented to the jury as being of major importance to the Crown case. The centrality and importance of those interviews in the case presented to the jury leads us to the conclusion that we cannot say that, had the interviews not been before the jury and available to the prosecutor for the use which he made of them, there was yet no realistic possibility of the jury reaching a verdict other than that which they returned. As an aside, we note that the verdict was returned by a majority; and that it was returned with deletions to which we shall return in respect of the second ground of appeal.

[21] For completeness we would add that in the course of his submissions to us the advocate depute referred to the decision of this court in Anoliefo v HM Advocate [2012] HCJAC 110; 2012 SCCR 657. However, in our view the application of the consequences test, where evidence of police questioning has been wrongly admitted, described by the Supreme Court in its decisions in Cadder v HM Advocate and McInnes v HM Advocate is very much "case specific" in the sense that, as we have already indicated, the court has to examine the role which that inadmissible evidence played in the prosecution case and the whole circumstances of the trial. The circumstances of the present case are very different from those of Anoliefo v HM Advocate.

[22] In these circumstances we have come to the conclusion that the appeal succeeds on the first ground of appeal and that the conviction must therefore be quashed.

The reasoned judgment ground

[23] Given our conclusion that the appeal succeeds on the first ground and that the conviction falls to be quashed on that account, it is not necessary for us to express any concluded view on the second ground of appeal, which raises some potentially difficult issues. We think it appropriate however to ventilate the problem which we perceive as underlying that ground.

[24] The ground is framed as one of irrationality and a breach of Article 6 ECHR in respect that the verdict does not afford a proper statement of reasons. We should state immediately that the argument for the appellant did not involve any general question respecting the compatibility in principle of criminal jury trials in Scotland with the requirements of a reasoned judgment under Article 6 ECHR (cf the decision of the ECtHR in Judge v United Kingdom reported domestically at 2011 SCCR 241). It was a "case specific argument" to the effect that in the peculiar circumstances of this trial there was such ambiguity in the jury's verdict as to offend against Article 6.

[25] In addressing this aspect of the appeal, the advocate depute adopted the approach that, taken simply on its terms, the verdict returned with the deletion of "repeatedly" was not ambiguous. The appellant knew that he had been found guilty of "a rape". He knew that he had been found guilty of the terms of the libel subject to that deletion.

[26] While on the face of its terms the libel of which the appellant was convicted might not be obviously ambiguous, against the circumstances of the trial it was indeed ambiguous. At the risk of oversimplification, the ambiguity is this. The complainer deponed to two distinct rapes, one in the living room of the flat and the second, later, in the bedroom. For his part the appellant accepted that the parties had had sexual intercourse in the living room (a matter agreed by joint minute) but he maintained that the sexual activity which took place there was consensual. While there was a recognition by the appellant that he had later over-reacted and could have been taken as having assaulted the complainer in the bedroom, there was never any subsequent act of sexual intercourse in the bedroom. Since the jury deleted from the libel the word "repeatedly" - which, importantly, had been explained to them by the trial judge as simply meaning more than once - one cannot tell whether the appellant had been found guilty of the mutually exclusive events of raping the complainer in the living room (where he had admitted sexual intercourse had occurred) or of rape in the bedroom where the complainer alleged non-consensual sexual intercourse to have occurred but the appellant, while conceding some degree of assault, denied the occurrence of any sexual activity. It follows that one or other of the two broad chapters of complaint advanced by the complainer was found by the jury not to have been established. But, as the trial judge acknowledges in his report, one cannot tell which.

[27] Faced with that conundrum the trial judge says in his report that he sentenced the appellant on the basis of the alternative which, according to his impression, was the more likely and which was, in his view, more favourable to the appellant. But that is hardly satisfactory.

[28] There is thus unquestionably a problem presented by this verdict. It appears to us that the source of that problem lies in the unsatisfactory way in which the charge in question was framed in the indictment. Notwithstanding the information, which we presume was available to the drafter of the charge, to the effect (a) that on the complainer's account there were two distinct separate acts of non-consensual intercourse, one of which was in the living room and the other, at a later point in time, in the bedroom; and (b) that from the police interview evidence the appellant's position was that while there was consensual sexual activity in the living room no intercourse took place in the bedroom, where the quarrel occurred, the drafter of the indictment made no discernible effort to give proper reflection to the temporal and locational sequence of these accounts. Indeed, on a prima facie reading of the indictment, the sole location of the alleged repeated non-consensual sexual coition was in the bedroom. Although, at least by the stage at which he came to address the jury, an advocate depute might have been alert to the problem that the terms of the charge were not consonant with the evidence, no motion was made by the trial advocate depute to amend the terms of the libel to reflect the reality of the evidence at the trial. The original deficiency in the terms of the libel was thus compounded by that omission.

[29] The observation which we would make respecting this analysis of the problem is that it should be appreciated that the precise terms of a libel, both as originally drafted and ultimately presented to the jury, are an important part of the structural framework within which a jury trial in Scotland may satisfy the Article 6 requirements for a reasoned judgment.

[30] While it is not necessary for us to reach a concluded view upon whether the latent ambiguity underlying the jury's verdict in this case would necessarily, in itself, entail the quashing of the conviction, it is appropriate that we draw attention to the need for the prosecutor properly to recognise and satisfy the important structural role which the indictment fulfills in our system of jury trial, if it is to satisfy the Article 6 requirements for a reasoned judgment.

[1] "The applicant grabbed the complainer's arm and pulled her back into the living room. He began to kiss the complainer forcefully. He pulled down her jeans and pants, and then attempted to engage in oral sex with her. He held her down, and began to penetrate her vagina with his penis. She was begging him to stop. She did not want to have sexual intercourse with him. She described herself as being "quite frenzied" and said that she was crying. The applicant continued to have sex with her nonetheless. Although the complainer was not struggling, it was clear that she was in distress. This episode lasted for between half an hour and forty minutes. The complainer did not know whether the applicant had ejaculated. She thought that the applicant had stopped because he had 'run out of steam'. As soon as he did, she jumped up, pulled up her pants, kicked off her jeans, which were tangled around her legs, and ran through to her bedroom, where E [the baby] was sleeping."

[2] "15. Under a minute later, the applicant followed the complainer into the bedroom. He was 'absolutely furious'. He was shouting at her, blaming her for what had happened, telling her that she was trying to make him look bad and that she wanted to have sex with him. He was going through her phone, 'making allegations about anybody in it'. The applicant grabbed the complainer by the neck, and threw her onto the bed. The complainer tried to pull away. At over 6' to her 5'9" he could easily overpower her. The applicant was screaming at her to look at him. She eventually turned towards him. He then ripped off her pants, and penetrated her vagina again with his penis. She did not want to have sex with him. The complainer described the applicant's demeanour in the following terms: 'he had completely lost could see in his eyes, he didn't even know what he was doing. He had got so angry, and he was doing something in such a fit of rage, I.and , I mean, was absolutely petrified'.

16. The second incident lasted for about twenty minutes to half an hour; the complainer was not very confident of these figures. The applicant eventually stopped of his own accord. The complainer did not know whether he had ejaculated."

[3] "31. The applicant and the complainer sat down together in the living room. The applicant retrieved a bottle of wine and two glasses from the kitchen. They sat for 'a good hour' drinking the wine together. The complainer produced some cocaine from her bag. The both had a line. They discussed their relationship. The complainer appeared to be flirting with him. At one point, the complainer said: 'I don't know if we're right for each other. Not right now, R, but we could get back together, you know, we could'.

32. The applicant got the impression that the complainer needed some comfort. He tried to hug and kiss her, but she pulled away. He asked her 'Are you okay?' He kissed her again, and they started kissing. '[O]ne thing led to another'. The complainer undid the applicant's belt. He tried to undo her trousers. She began to masturbate him. He performed oral sex on her briefly. There was no indication that the complainer did not consent. They went on to have penetrative vaginal intercourse. This lasted for a minute or two, before the complainer said: Stop it R. I can't do this any more. Some people would call that rape".

33. The applicant stopped as soon as the complainer told him to do so. He described his reaction as 'flabbergasted'. He asked the complainer what she was talking about. He had not raped her. The complainer was lying if she said that he had."

[4] "36. By this stage, the applicant was shouting at the complainer. He took hold of her by the arms, and told her to look him in the eyes. At 5'9" the complainer was 'quite an imposing figure'. She was as tall as the applicant himself (cf paragraph 15). The complainer was 'not really resisting', but turned her head away from him. They argued about calls that the complainer had made to a former boyfriend named Angus. The complainer was shouting back at him.

37. The complainer returned to the bedroom. She had asked the applicant to leave her house. He accepted that he ought to have done so, but he was concerned by her mention of rape and worried about leaving her in an intoxicated state with E. The applicant followed the complainer. He continued to ask her if she had been sleeping with someone else. With regard to Angus, the complainer said: "He's just a friend" and smirked. The applicant took the complainer by the wrists, and asked her to look him in the eye and tell him what was going on. The complainer screamed. The applicant grabbed her underwear at the waistband. The complainer pulled away, and her underpants ripped. The complainer slapped him. Her underpants were not ripped in two. He knew this because they remained on her. The applicant did not at any stage rip the underpants off the complainer. The complainer then put on a pair of tracksuit bottoms. The applicant picked up E, who by this stage was awake. The complainer again asked him to leave. He refused to do so. The complainer ran next door, to BA's flat. She returned, picked up the wrap of cocaine, which was on the table, and told him to go, saying that she had phoned the police. The applicant was on the sofa, feeding the baby."