Lady Paton

Lord Hardie

Lord Bonomy

[2012] HCJAC 55

Appeal No: XC188/09


delivered by LORD BONOMY










Appellant: Shead et Mason; Bruce & Co, Arbroath

Respondent: Fairley AD et Barron; Crown Agent

3 May 2012


[1] The appellant was convicted on 17 March 2009, after trial at the High Court in Edinburgh, of the following charge:

"On an occasion between 20 August 2007 and 6 September 2007, both dates inclusive, at 15/14 Bingham Medway, Edinburgh you did assault M, and did attempt to induce her to consume alcohol, seize her by the body, pull her towards you, pick her up and drag her to a bedroom, place her face down on a bed and remove her clothing, tie her arms and feet to said bed, and you did rape her."

[2] Following his detention the appellant was interviewed without having access to the advice of a solicitor, and evidence was led about the terms of that interview at his trial. The Crown initially maintained that the appellant had waived his right of access to a lawyer, but before us it was conceded by the Crown, under reference to Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC)13, 2010 SCCR 951, 2010 SLT 1125, that evidence of the interview should not have been led.

[3] At the appellant's trial the Crown relied upon his admission of having intercourse with the complainer to provide corroboration that he was the person who had assaulted and raped her. However, the police interview was not the only source of acknowledgement by the appellant that he had had intercourse with the complainer. Prior to the police interview, at the point of detention, he made certain remarks relating to his relationship with the complainer. In light of the terms of the interview the Crown did not rely on these remarks at trial.

[4] The first questions before us are whether, in light of Cadder v HM Advocate it is now appropriate to take that evidence into account and whether in fact the remarks amount to an acknowledgement of penetration of the complainer. In the event that the answer to both is in the affirmative, the next question for our attention is whether, absent the evidence of the police interview, there was a real possibility of a different verdict (Cadder v HM Advocate (supra) at paragraph 64). There is a third and separate issue relating to the admission of the evidence of a chartered clinical psychologist, Dr Katharine Russell, as to the complainer's lack of understanding of sexual intercourse and related matters.

The Facts

[5] The complainer was befriended at work by 'JC'. Because the complainer was having difficulty picking up how to do things correctly, 'JC' tried to help her out. The complainer visited her at her home. There she encountered the appellant who was one of 'JC's' neighbours. The appellant and the complainer met on subsequent occasions. On one occasion they went to Portobello Beach for a barbeque; on another occasion they went to the cinema together, after which the complainer went to the appellant's flat from where he walked her home.

[6] They met again on 27 August 2007, a holiday Monday, when she took a DVD player and some DVDs to his flat. There they watched a film on the DVD player. What happened thereafter is described by the trial judge in his report as follows:

"When she was putting away her DVD he dragged her through to the bedroom. She tried to pull away but he was too strong for her. He laid her face down on the bed. He took her top, trousers and pants off. He tied her feet and hands to the bed. She kept saying 'No, no no' and tried to get away. Her feet were tied to one side of the bed and her hands to the head of the bed with dressing gown cords. He said 'You'll not get out of this one.' She did not know what was going to happen to her and she tried to undo the ties to get away. He had his penis out and put beer on it. She shouted on 'J'. He put his penis in what she described as 'my back end'. She did not know what was happening to her. At one point he put something in her mouth. (The words 'place a gag in her mouth' in the charge were deleted by the jury in their verdict). There was blood on the sheet and she thought she was bleeding but did not know where from. She did not think that what had happened to her was all that serious so she just put on her clothes and went home after he had untied her. He had the cheek to walk her home and ask if she was all right.

The complainer did not know what had happened to her or how to describe what had happened. She did not tell anyone, even when she was asked by her father and grandmother if anything had been done to her. On one occasion after the incident she was walked home from work by the appellant and refused a lift from her father in his taxi. She first disclosed what had happened to her when she was asked by 'JC', who then contacted the police on 6 September 2007. When she was examined by a forensic medical examiner a full length tear at the four o'clock position was found in her hymen."

[7] The appellant was detained by the police on 7 September 2007, and in a lengthy police interview lasting 1 hour 53 minutes he admitted tying the complainer's hands and one foot to the bed and having sexual intercourse with her, but maintained that she consented and indeed had egged him on by saying "Go for it" and also "Keep going". He stated that when he inserted his penis into her vagina she screamed and he withdrew and untied her. He gave evidence at the trial maintaining his defence of consent.

[8] The appellant was detained at his home address on 7 September 2007. After being cautioned and told why he was being detained he said:

"I'm flabbergasted. I've only slept with two people since I've been here."

He shortly thereafter, once he had checked some items of property in his bedroom, added:

"I've slept with Kirsty, but she only came on Monday, and another girl who lives over there, she's a care assistant. I can't remember her name. She's only 17 1/2 years old."

The reference to "another girl" was clearly a reference to the complainer.

Admissibility of Remarks made upon Detention

[9] Mr Shead, counsel for the appellant, acknowledged that, if these utterances were truly voluntary, they were not struck at by the decision in Cadder v HM Advocate or any other related case. The question, therefore, was whether, applying the general test of fairness, the policy of the court should be to admit such statements, bearing in mind what was the state of the law at the time the statements were made. He suggested that the court might approach the matter by asking this question - is such a statement truly voluntary when the person making it does not know of his entitlement to legal advice? Mr Shead also invited us to construe the appellant's reference to sleeping with the complainer as not amounting to an acknowledgement of penetration, but in doing so recognised that the court had already, in GM v HM Advocate [2011] HCJAC112 at paragraph 21, interpreted that expression as being open to that construction.

[10] In response the Advocate depute submitted that, unless there could be shown to be some nexus between an utterance or remark and police questioning in relation to the offence, Cadder v HM Advocate was not engaged to the extent of rendering the remark inadmissible. He relied in particular on the judgment of Lord Hope at paragraph 48 and Lord Rodger at paragraph 70 and their emphasis on material derived from interrogation. The same emphasis can be seen in paragraph 13 of the opinion of Lord Justice Clerk in Mullen v HM Advocate [2011] HCJAC55, 2011 SCCR 438, and paragraph 80 of the judgment of Lord Brown in Ambrose v Harris [2011] UKSC 43, 2011 SCCR 651.

[11] Having reviewed again the evidence relating to the circumstances in which the remark about sleeping with the complainer was made, we consider that it was a genuinely voluntary statement made following caution to the effect that the appellant was not obliged to say anything other than to provide certain personal details, and including the warning that anything he did say might be used as evidence. His remarks were made instantaneously and, in our opinion, spontaneously and truly voluntarily. No question was posed to which the remarks could be seen to be a response. Some reference was made in the discussion before us to the possibility of the terms of the caution being revised to include reference to the right to legal advice. However any such revisal would relate to legal advice before being interviewed. It is difficult to see what difference such an additional element in the caution would have made in the circumstances of this case. We can see no reason why evidence of the remarks should not have been admitted.

[12] Since the remarks were properly admitted, they were a feature of the trial and were available to the jury for their consideration. The fact that, when the Advocate depute came to address the jury, he chose to rely on what the appellant had said at the interview rather than these remarks does not detract in any way from their availability as evidence to be taken into account in determining whether there was a sufficiently corroborated case to answer at the close of the Crown case. Mr Shead suggested that in two respects there was insufficient evidence, viz penetration of the complainer's vagina and identification of the appellant as the assailant. In our opinion there was sufficient corroborated evidence in respect of both. The complainer's evidence that she was penetrated somewhere in the region of her private parts was corroborated by the evidence of Dr Jane Turnbull, forensic medical examiner, that the complainer had a full length tear at the 4 o'clock position in her hymen. The complainer's evidence that the appellant was responsible for penetrating her was corroborated by his remarks, in particular his statement that he had "slept with" another girl clearly

fitting the description of the complainer. The absence of consent and the appellant's awareness thereof were spoken to by the complainer and confirmed by the findings of dressing gown cords during the police search of the appellant's home. We are accordingly satisfied that, absent the evidence of the police interview, there was nevertheless, at the close of the Crown case, a sufficiently corroborated case for the appellant to answer.

Admissibility of the Expert Evidence

[13] In these circumstances it is necessary to address the question whether, had the evidence of the interview been excluded, there was a real possibility of the jury arriving at a different verdict. Before addressing that question, however, it makes sense for us to deal with the third and separate issue mentioned above relating to the evidence of Dr Katherine Russell. Should we decide that her evidence ought not to have been admitted, then the question whether there was a real possibility of the jury arriving at a different verdict would have to be addressed in light of that error along with the admission of evidence of the police interview of the appellant.

[14] In the course of preparing the case for trial the Crown were concerned about the apparent learning difficulties displayed by the complainer which were confirmed by the views expressed by witnesses about her naivety and level of understanding of matters sexual. Reports were commissioned from two psychologists. The instructions given to Dr Katherine A Russell, chartered clinical psychologist, were to complete a cognitive assessment of the complainer and in particular to consider whether she was able to give consent to sexual intercourse. Dr Russell conducted two individual assessment interviews with the complainer and in addition assessed her intelligence and carried out a mini mental state examination to test her memory. Dr Russell was unable to complete her assessment of the complainer's ability to give consent to sexual intercourse. However she was able to reach conclusions about her level of intellect and her understanding of matters relating to sexual intercourse. She found the complainer to have a very low average (borderline) intelligence quotient and a definite lack of knowledge in the area of understanding of the consequences of sexual intercourse, the mechanics of sexual intercourse, the nature and functions of sexual organs and even the language associated with sexual activity and relationships.

[15] At the trial the Crown led Dr Russell as a witness. She spoke to her report, Crown production 15. When she reached that part of her report which dealt with the complainer's sexual knowledge and understanding, counsel for the appellant objected to her evidence on the ground that, because it was not the Crown case that the complainer's intellectual capacity was such that she was incapable of consenting to sexual intercourse, Dr Russell's evidence relating to the extent of the complainer's sexual knowledge was hearsay evidence in relation to material about which it was not appropriate to lead expert evidence. The evidence was accordingly irrelevant. The jury could assess the complainer's knowledge of sexual matters from her own evidence. They did not require the assistance of expert evidence. In response the Advocate depute submitted that the expert evidence was relevant to the credibility of the complainer and the appellant. It would not have been realistic or appropriate for him to have asked the detailed questions posed by Dr Russell in her interviews and then to have asked the jury to work out her state of sexual knowledge without expert assistance.

[16] The trial judge repelled the objection on the ground that the evidence sought to be led did not constitute secondary hearsay and that it was relevant to the question of credibility and reliability of the complainer and the appellant. That decision is challenged as erroneous in both respects - it was neither hearsay nor relevant expert evidence.

[17] In support of this ground of appeal Mr Shead founded on Gage v HM Advocate [2011] HCJAC40. The test was not one of relevance but necessity. There the court had held expert evidence relating to the inherent unreliability of identification evidence to be inadmissible. Mr Shead submitted that the result of the erroneous admission of the evidence of Dr Russell was to accord to the complainer's evidence, and indeed to the Crown case, a false note of authenticity which, when considered along with the damage to the appellant's case done by the admission of evidence of his interview, had resulted in a miscarriage of justice.

[18] The Advocate depute submitted that, properly understood, the decision in Gage supported the Crown position. Expert evidence was appropriate where a case involved special features pertaining to a witness or the evidence of the witness that were likely to be outwith the jury's knowledge or experience (paragraph 22 of the opinion of the Lord Justice Clerk). The Advocate depute then drew our attention to various passages in the report and evidence of Dr Russell which demonstrated that the evidence of the complainer fell into that category, in particular her lack of understanding of sexual matters.

[19] We accept that Mr Shead correctly identified the test for the admissibility of expert evidence in circumstances such as this as one of necessity. Relevance alone is not sufficient. That that is the case is clear from the opinion of the Lord Justice Clerk in Gage v HM Advocate where he described the test and illustrated its application in practice as follows:

"[22] We do not accept the submission that evidence of the kind proposed is admissible if it might be useful to the jury. That test is not supported by authority and, in our view, would be unworkable in practice. Expert evidence is admissible only if it is necessary for the proper resolution of the dispute. In particular, in a case of this kind it is necessary only if the tribunal of fact would be unable to reach a sound conclusion without it (Wilson and Murray v HM Adv [2009] HCJAC 58, 2009 SCCR 666, para [58]; Dickson Evidence (3rd edn), para 397). That will be the case only if there are special features pertaining to a witness or to his evidence that are likely to be outwith the jury's knowledge or experience (HM Adv v A 2005 SCCR 593, at para [11]).

[23] For these reasons this court has held that psychiatric or psychological evidence would have been admissible on the question of the reliability of a child witness in light of the interviewing techniques used (AJE v HM Adv 2002 JC 215) and on the question whether a witness suffered from a severe personality disorder and was a pathological liar (McBrearty v HM Adv 2004 JC 122). This court has also admitted such evidence on the question of an appellant's susceptibility to pressure when he was being questioned by the police (Gilmour v HM Adv [2007] HCJAC 48, 2007 SCCR 417). A trial judge has admitted such evidence on the question whether a complainer who suffered from bi‑polar illness (manic depression) exhibited false memory syndrome (HM Adv v A, supra); but it was not admitted in HM Adv v Grimmond (2001 SCCR 708) on the question of reliability of child complainers where there was no suggestion that they were other than ordinary, normal children."

[20] The assessment of the intellectual capacity, and indeed also the level of the general social functioning, of a person with an intellectual capacity so limited that it falls below that of the vast majority of the population is plainly an area of psychological expertise. A proper assessment of intellectual and social functioning by psychometric testing and questioning is appropriately done in scientifically controlled surroundings. Where a witness falls into such a limited category of the public that jurors are unlikely to have experience of the way in which the difficulties facing such people are likely to manifest themselves, expert psychological evidence can be said to be necessary to give to the jury a proper appreciation of the witness's level of understanding by reference to her intellectual capacity. While that level of understanding can be, and indeed was, spoken to by witnesses who knew the complainer, their evidence was anecdotal experience of a level of understanding of a kind members of the jury were unlikely to have encountered. Dr Russell's investigation demonstrated that the complainer's intellectual capacity was lower than that of the vast majority of the population. She fell into a small group of persons with very low intellectual capacity bordering on learning difficulty.

[21] In our opinion the test for admission of expert evidence relating to a witness, explained in Gage v HM Advocate, was met in the circumstances of this case. The special features of the intellectual capacity of the complainer which had a direct bearing on her lack of understanding of matters relating to sexual relations, including the mechanics and consequences of sexual intercourse, the nature and functions of sexual organs, and even the language associated with sexual activity and relationships were likely to be outwith the jury's knowledge or experience. Much of her evidence was likely to have appeared to the jury to be odd, having regards to her physical age. Expert evidence relating to the complainer's intellectual capacity and understanding of matters sexual was therefore necessary to enable the jury to reach a sound conclusion as to the credibility and reliability of her evidence and that of the appellant. The appellant's ground of appeal relating to the admission of Dr Russell's evidence thus falls to be refused.

Was there a Real Possibility of a Different Verdict?

[22] As a result, the question whether there was a real possibility of the jury arriving at a different verdict arises only in relation to the wrongful admission of evidence of the appellant's interview. It was the submission of Mr Shead that, in the absence of evidence of the interview, the Crown case would have been weakened to a material extent in two respects; firstly, the evidence from the interview supporting the Crown case would not have been available, and secondly, the interview could not have been used, as it was, to undermine the appellant's credibility. In support of the first point Mr Shead founded also on a separate ground of appeal to the effect that the trial judge misdirected the jury when he directed them that, because the appellant had given evidence, the contents of his "mixed statement", i.e. his police interview, were not evidence of the facts mentioned therein in so far as they were in his own favour, but that what he said in his own favour to the police could be founded on by the appellant only as supporting or strengthening his credibility or reliability.

[23] Under reference to Thomson v HM Advocate 1998 SCCR 683, the Advocate depute acknowledged that to limit the use to which passages from the appellant's interview favourable to his case might be used was a misdirection, but submitted that that misdirection was of no practical significance in the context of the trial as a whole.

[24] With that submission we agree. We invited Mr Shead to identify any part of the interview which contained material favourable to the appellant's case which did not feature as part of his evidence in court. Mr Shead did not identify any passage of which that could be said. He made the general proposition that the balance of the trial had been disturbed by that part of the charge, because the Crown had the benefit of the parts of the statement they relied on while the appellant had been denied the benefit of parts favourable to his case.

[25] In further support of his proposition that the Crown case would have been much less robust at its close had the interview been ruled inadmissible, Mr Shead submitted that the spontaneous remarks made on detention would have been much more likely to be seen as exculpatory. The appellant's statement that he was "flabbergasted" was as exculpatory an assertion as one could imagine.

[26] However his principal submission was that the Crown would have been unable to use elements of the interview in the way in which they did to undermine the appellant's evidence. He referred to a number of passages on which the Advocate depute had founded to advance a submission in his speech to the jury that the appellant had been lying in his evidence. In the absence of evidence of the interview, the appellant could have given his evidence from a much more advantageous position. That alone, in Mr Shead's submission, satisfied the test that there was a real possibility of a different verdict. As was plain from the trial judge's charge, both counsel had placed reliance on the accused's evidence in light of his interview.

[27] In a case such as this the credibility and reliability of the principal witnesses, the complainer and the appellant, are inevitably significant issues, and the terms of a prior interview of the appellant may have an important part to play in the jury's determination of where the truth lies. However, whether that part is of such significance that the absence of the interview from the case should give rise to a real possibility that the jury would have returned a different verdict depends upon a review of the whole evidence presented in the case and an assessment of the significance of the interview in the overall content of the case presented at the trial. Our review of the evidence has failed to identify any individual aspect of the interview that was likely to have had a significant bearing on the verdict. We have come to the conclusion that, having regard to the overall strength of the Crown case, including the spontaneous remarks made by the appellant on detention, the fact that the appellant gave evidence and was able to state all that he wished in his defence, and the fairly limited use that was made of the evidence of the interview, there was no real possibility that the jury would have returned a different verdict had the evidence of the interview not been admitted.

[28] There was clear evidence that the complainer was a very immature naïve 17 year old who had little understanding of matters sexual. JC noted from the point she first met her that she presented as very young. She was "childlike" and got on very well with JC's 11 year old son. She had told JC that she had never had a boyfriend. The complainer's father described his daughter as a very slow learner who struggled with schoolwork and was usually shy and timid. She tended to socialise with younger people. Her mother described her as having needed learning support, and said that she had not had a boyfriend and had declared no knowledge to her of boys. Her grandmother described her in a similar way. PC Andrew Dick, who took a statement from her on 6 September 2007, said that within five minutes of meeting her he had formed the view that she had learning difficulties and he arranged for an appropriate adult from emergency social work services to be present during the interview. The appellant described her, prior to the incident, as having kissed like a child. The complainer herself gave evidence that at the time of the incident she did not know the name for a penis, that prior to the incident she had never had a boyfriend nor kissed a boy, had never seen a penis and did not know what sex was. In describing the incident, she was unclear about precisely where on her body the appellant had penetrated her, although she knew that it was somewhere at her back end. That the penetration was vaginal was confirmed by the evidence of the forensic medical examiner. At the time of the incident the complainer was 17 and the appellant 46.

[29] So far as the incident is concerned, the complainer's evidence was of being dragged by the appellant to the bedroom, forced onto the bed and having her clothes forcibly removed before being tied to the bed with dressing gown cords and penetrated. Dressing gown cords were recovered from the bedroom during the police investigation. The appellant confirmed that he had tied the complainer to the bed, but with her consent and not securely. The complainer gave evidence of shouting for help. The appellant stated in his evidence that she had screamed out as he penetrated her. Both confirmed that she bled afterwards. The appellant acknowledged that on the day before the incident he had apologised to her when he had put his hand down her trousers and she had said "No". He also accepted that he had apologised to her after the incident in the libel. He accepted that he did not ask her if she wanted to have sexual intercourse. In support of his defence the appellant was able to give a full account of the whole relationship between him and the complainer.

[30] Having considered again the cross‑examination of the appellant, so far as it involved reference to his police interview, we have been unable to identify any particular point on which the appellant's evidence could be said to have been undermined by reference to the interview. Nor have we been able to identify minor matters which, taken together, might be said to have undermined the defence case. On the other hand, there were parts of the appellant's evidence, unrelated to his interview, in which he was evasive about his knowledge of the complainer's age, her maturity, when he became sexually attracted to her, and what they talked about.

[31] We therefore reject the contention that, had the evidence of the interview been excluded from the trial, there was a real possibility of a different verdict.

[32] For these various reasons we refuse this appeal.