JUDGMENT
Gordon (Appellant) v Scottish Criminal Cases
Review Commission (Respondent) (Scotland)
before
Lord Kerr
Lord Clarke
Lord Reed
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
22 March 2017
Heard on 13 December 2016
Appellant Respondent
Mungo Bovey QC Gerry Moynihan QC
Gerry Coll Chris Pirie
(Instructed by Drummond
Miller LLP
)
(Instructed by Scottish
Criminal Cases Review
Commission
)
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LORD REED: (with whom Lord Kerr, Lord Clarke, Lord Hughes and Lord
Hodge agree)
Introduction
1. This appeal arises out of an application for judicial review of a decision taken
by the Scottish Criminal Cases Review Commission (“the Commission”) under
section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended (”the
1995 Act”). That subsection provides, so far as material:
“The Commission on the consideration of any conviction of a
person … who has been convicted on indictment or complaint
may, if they think fit, at any time, and whether or not an appeal
against such conviction has previously been heard and
determined by the High Court … refer the whole case to the
High Court and, subject to section 194DA of this Act, the case
shall be heard and determined, subject to any directions the
High Court may make, as if it were an appeal under Part VIII
or, as the case may be, Part X of this Act.”
2. The grounds for a reference under section 194B(1) are set out in section
194C:
“(1) The grounds upon which the Commission may refer a
case to the High Court are that they believe –
(a) that a miscarriage of justice may have occurred;
and
(b) that it is in the interests of justice that a reference
should be made.
(2) In determining whether or not it is in the interests of
justice that a reference should be made, the Commission must
have regard to the need for finality and certainty in the
determination of criminal proceedings.”
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3. It is also relevant to note section 194DA. So far as material, it provides:
“(1) Where the Commission has referred a case to the High
Court under section 194B of this Act, the High Court may,
despite section 194B(1), reject the reference if the Court
considers that it is not in the interests of justice that any appeal
arising from the reference should proceed.
(2) In determining whether or not it is in the interests of
justice that any appeal arising from the reference should
proceed, the High Court must have regard to the need for
finality and certainty in the determination of criminal
proceedings.”
4. Sections 194C(2) and 194DA were inserted into the 1995 Act by the Criminal
Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (“the
2010 Act”), a piece of emergency legislation which was enacted on the day after this
court gave judgment in Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC)
13; [2010] 1 WLR 2601.
5. These proceedings arise out of the Commission’s consideration of the
appellant’s conviction for rape. The Commission decided not to refer his case to the
High Court of Justiciary. They accepted that a miscarriage of justice might have
occurred, but they did not believe that it was in the interests of justice that a reference
should be made. The condition laid down in section 194C(1)(b) was therefore not
met. The appellant challenges that decision on the basis that the Commission’s
decision was vitiated by errors of law.
6. The appellant’s application for judicial review was refused by the Lord
Ordinary, Lord Pentland. That decision was upheld by an Extra Division (Lord
Menzies, Lady Clark of Calton and Lord Wheatley). The present appeal against their
decision was brought before the introduction of a requirement that permission to
appeal should be obtained.
The factual background to the appeal
7. On 12 August 2001 the appellant had sexual intercourse with a woman who
then reported to the police that she had been raped. She was medically examined,
and vaginal swabs were taken from her for forensic examination. The following day,
the appellant was informed by the police that the allegation had been made. As
requested, he went to a police station and was interviewed by police officers. At the
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beginning of the interview he was cautioned. He confirmed that he fully understood
the caution and that he had attended the police station voluntarily. He was asked if
he wished to have a solicitor advised, but declined. In accordance with practice at
the time, and the law as then understood, he was not offered the option to consult a
solicitor before the interview, and no solicitor was present during it. When
questioned, he freely admitted having had sexual intercourse with the complainer at
his flat, and maintained that it had taken place with her consent. As a result of his
admission, the semen found on the vaginal swabs was not subjected to DNA
analysis. That also was in accordance with the usual practice at the time, when the
fact that sexual intercourse had taken place between an accused and a complainer
was not in dispute. The appellant was subsequently charged with the rape of the
complainer, and also with indecent assaults on two other women.
8. The subsequent trial took place between 30 August and 5 September 2002.
At the trial, the appellant was represented by a highly experienced Queen’s Counsel.
He pled guilty to one of the charges of indecent assault, and the other charge of
indecent assault was withdrawn. In relation to the charge of rape, the Crown relied
on the appellant’s admission as corroboration of the complainer’s evidence that
sexual intercourse had occurred, that being an element of the offence which must be
proved by corroborated evidence. A videotape of the appellant’s interview was
therefore played to the jury as part of the Crown case, without objection.
Corroboration of the complainer’s evidence as to the other essential element of the
offence, namely that she had not consented to sexual intercourse, was provided by
other Crown witnesses, who gave evidence of her being in a state of shock and
distress shortly after her encounter with the appellant, and of injuries which were
found when she was medically examined. There was also evidence that a decorative
chain on her trousers had been broken, although her clothing was otherwise
undamaged.
9. In cross-examination, the complainer accepted that she had initially given the
police an untrue account of where the incident occurred, when she had stated that
she had been raped in a lane near the nightclub where she met the appellant, rather
than at his flat, some miles away. She explained that she had been disorientated. In
relation to the evidence of her being distressed, the line of cross-examination sought
to attribute her distress to her consumption of alcohol and medication, and to the
appellant’s having rejected her at the end of their encounter. It was also established
that the complainer initially told the police that she had been taken from the
nightclub forcibly, but later said that she left it willingly. She had explained her
earlier account by saying that she had been embarrassed to admit that she had gone
home with a man she had only just met.
10. The appellant elected not to give evidence, but relied on the interview as
setting out his defence to the charge, namely that the sexual intercourse had been
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consensual. As a result, he avoided having his version of events subjected to crossexamination.
11. The appellant was convicted. He was sentenced to five years’ imprisonment
on the rape charge and admonished for the indecent assault. The sentence was
completed long ago.
12. The appellant’s case is fairly typical of rape cases of that period. It was usual
for persons accused of rape to be interviewed by the police without having the
opportunity to consult a solicitor. It was common for them to accept that sexual
intercourse had taken place and to maintain that it was consensual. It was common,
in those circumstances, for the police not to complete forensic examination of
samples which might have provided independent corroboration of the fact of sexual
intercourse, since the accused’s admission at interview rendered such examination
unnecessary. It was usual for the Crown then to rely on the admission as part of the
Crown case at the trial. It was common for the accused to rely on the exculpatory
part of the interview in his defence.
The first appeal
13. The appellant appealed against his conviction for rape on three grounds. The
first was defective representation. He claimed that evidence should have been led
from a number of witnesses who could have given evidence about such matters as
his kissing the complainer in the night club prior to their going to his flat, and the
lack of noise from his flat at the material time. The second ground was that the jury
had been directed on the law of rape in accordance with the decision in Lord
Advocate’s Reference (No 1 of 2001) 2002 SCCR 435, which post-dated the
incident. The third ground concerned the prejudicial effect of pre-trial publicity.
Each ground was considered at first sift (by a single judge) on 20 June 2003. Leave
to appeal was refused, the first sift judge giving detailed reasons for his decision.
However, at second sift (by three judges) on 23 December 2003, leave to appeal was
granted, but only on the defective representation ground. Notwithstanding that
decision, on 30 April 2004 the court allowed the appellant to lodge two additional
grounds of appeal. The new grounds related to the adequacy of corroboration, and
to the directions given on mens rea. At the hearing of the appeal on 29 September
2004, it was only the new grounds which were relied upon. The appeal was refused:
Gordon v HM Advocate 2004 SCCR 641.
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The second appeal
14. The appellant applied to the Commission to have his case referred back to the
High Court on a number of grounds, namely prejudicial pre-trial publicity, the effect
of the development in the law of rape between the incident and the trial, the
sufficiency of the evidence, misdirection on the law of rape, failure by the Crown to
disclose that the complainer’s clothing had been seized by the police, and police
misconduct and failures in relation to the investigation of the incident, the gathering
of evidence and the disclosure of evidence.
15. In April 2007 the Commission referred the case back to the High Court,
primarily on the basis that (1) the police investigation had been defective in a
number of respects, (2) there had been a failure by the Crown to disclose a statement
taken from the complainer in which she said that she shouted during the incident,
contrary to her evidence at the trial (although the defence knew at the trial that such
a statement had been made, and the complainer was cross-examined on the basis
that she had made such a statement), and (3) the Commission had discovered
evidence that the complainer had previously been in a relationship with one of the
witnesses who had given evidence of her distress. In accordance with section
194B(1) of the 1995 Act, the referral was dealt with as a second appeal.
16. On 20 April 2007 the appellant made a further application to the Commission,
on the basis that there had been an imbalance between men and women on the jury.
The Commission rejected the application on the ground that the case had already
been referred, and the matter could be raised as a ground of appeal. In the event, the
matter was not pursued.
17. The appellant’s grounds of appeal were lodged in June 2007. They concerned
the matters identified by the Commission, and also a failure to disclose that the
complainer had been charged by the police with child neglect in relation to an
occasion several months after the incident involving the appellant, when her
estranged husband reported that their 11 year old daughter had been left at home on
her own. The charge had not been pursued.
18. The appeal had an extended procedural history, described in the judgment of
Lord Carloway in Gordon v HM Advocate [2009] HCJAC 52; 2009 SCCR 570. In
the light of that judgment, in July 2009 the appeal was set down for a hearing on 26-
28 January 2010. On those dates the appellant appeared on his own behalf, having
parted company (not for the first time) with his legal representatives. He sought to
have the hearing discharged in order to instruct fresh counsel and solicitors, but that
application was refused in view of the protracted procedural history and the age of
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the conviction, amongst other matters. The appeal was refused on 6 May 2010:
Gordon v HM Advocate [2010] HCJAC 44; 2010 SCCR 589.
19. In its opinion, delivered by Lord Carloway, the court considered each of the
grounds of appeal with meticulous care. Its conclusion reflected its evaluation of the
likely effect on the jury’s verdict of the additional or undisclosed evidence, and of
the potential evidence which was unavailable because of defects in investigation:
“The points raised in this appeal are essentially matters of fact
which the appellant maintains might, or perhaps would, have
made a difference in the jury’s deliberations. But the reality is
that this was a complainer who was demonstrated to have given
different accounts to the police and others after the occurrence
of the incident. The defence brought out a number of points in
favour of the defence position, including the lack of damage to
the clothing. There was ample material available at the trial
which could have persuaded the jury that there was a
reasonable doubt about the guilt of the appellant. But, the jury
had no reasonable doubt and it is easy to see why. Although
there were substantial variations in the complainer’s early
accounts, she ultimately spoke clearly to leaving the nightclub,
ending up at the appellant’s flat and being raped by him.
… [T]he evidence of the bruising to the complainer’s breast,
arms, thighs and buttocks must have seemed to the jury, as it
does to this court, to be of some note. The ornamental chain of
her trousers was broken. In addition, it was not disputed that
the complainer had left the appellant’s flat abruptly. She did
not go home, as might have been anticipated after a consensual
event, but went first to a male friend’s house in the early hours
of the morning in a distressed state. When she left his flat, she
still did not go home, but called a female friend to pick her up
from a shopping centre some time around 3.30 am, when she
was witnessed still to be in a state of distress. In addition, there
was the appellant’s own account where, at parts of his
interview, he accepts that he escorted the complainer to his flat
when he knew she was in a drunken state. He admitted that
things ‘got a wee bit out of control’ at some point, albeit that
he had an alternative explanation for this. He admitted that he
did not provide the complainer with his name or address, so
that she could telephone a taxi. The jury would have been
entitled to regard these admissions as highly supportive of the
complainer’s account and not consistent with an episode of
consensual intercourse.
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The evidence therefore fully entitled the jury to reach the
verdict they did and nothing in the grounds of appeal or
otherwise has persuaded the court that a miscarriage of justice
did occur, or even might have occurred, in this case.” (paras
105-107)
The Cadder decision
20. On 26 October 2010, several months after the appellant’s second appeal had
been refused, this court gave judgment in the case of Cadder v HM Advocate. It held
that the right under article 6 of the European Convention on Human Rights not to
incriminate oneself implied that a suspect should be permitted access to legal advice
prior to and during interrogation by the police, unless there were compelling reasons
in the particular circumstances of the case which justified a restriction on the right
of access to a solicitor; and that, as a general rule, answers to police questioning
conducted without the opportunity of access to legal advice ought not to be admitted
in evidence. However, their admission in evidence did not in itself make the trial
unfair. A conviction would only be quashed if (per Lord Hope at para 64) it was
clear that there was insufficient evidence for a conviction without the evidence of
the police interview or that, taking all the 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.
21. This decision was not unexpected. There had however been considerable
concern about its practical implications, partly because of an apprehension that the
resultant change in understanding of the law might form the basis of appeals by the
large numbers of persons who had previously been convicted on the basis of
evidence obtained at interviews conducted without their having had access to a
solicitor. Such persons had been properly convicted under the law as it was
understood at the time of their trial and any subsequent appeal, but they might,
following Cadder, argue that they were the victims of a miscarriage of justice. There
was little if any authority on the approach which the High Court should take to
applications for extensions of time to lodge notices or notes of appeal, based upon
developments in the law. If the ordinary approach to applications for extensions
were adopted, then it appeared that such applications might be granted in large
numbers of cases, since the lateness of the application would generally be excusable.
There was also uncertainty as to whether the refusal of applications would in any
event be compatible with Convention rights. Even if the court adopted a restrictive
approach, the refusal of applications might simply result in a flood of references by
the Commission.
22. In Cadder, this court considered the retroactive effect of its own decision in
an effort to address those concerns. Lord Hope, in a judgment with which the other
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members of the court agreed, referred to dicta in earlier decisions of this court, to
the effect that it has an inherent power to limit the retrospective effect of its
decisions. The Convention principle of legal certainty suggested that there would be
no objection to this on Convention grounds. He concluded, however, that the
exercise of that power was precluded in this context by the statutory regime created
by the Scotland Act 1998. Furthermore, the relevant Strasbourg authority (Salduz v
Turkey (2008) 49 EHRR 19) had not laid down a new principle: far from making a
ruling that was not applicable to acts or situations that pre-dated its judgment, it
ruled that the applicant’s Convention rights were violated in 2001, when the relevant
events took place.
23. Nevertheless, Lord Hope considered that there were strong grounds for
ruling, on the basis of the principle of legal certainty, that the decision in Cadder did
not permit the re-opening of cases which had been finally determined. After
referring to judgments of the European Court of Human Rights concerned with the
principle of legal certainty in the application of the Convention, to the decision of
the Supreme Court of Ireland in A v Governor, Arbour Hill Prison [2006] IESC 45;
[2006] 4 IR 88, and to that of the Court of Appeal in England in R v Budimir [2010]
EWCA Crim 1486; [2011] QB 744, Lord Hope stated:
“In the light of these authorities I would hold that convictions
that have become final because they were not appealed
timeously, and appeals that have been finally disposed of by
the High Court of Justiciary, must be treated as incapable of
being brought under review on the ground that there was a
miscarriage of justice because the accused did not have access
to a solicitor while he was detained prior to the police
interview. The Scottish Criminal Cases Review Commission
must make up its own mind, if it is asked to do so, as to whether
it would be in the public interest for those cases to be referred
to the High Court of Justiciary. It will be for the Appeal Court
to decide what course it ought to take if a reference were to be
made to it on those grounds by the commission”. (para 62)
The reference to the public interest in that passage, and in a similar passage in the
judgment of Lord Rodger (para 103), should be understood as referring to the
interests of justice, in accordance with section 194C(1) of the 1995 Act.
24. Lord Rodger, in a judgment with which the other members of the court also
agreed, observed (para 101) that guidance could be derived from the judgment of
Murray CJ in A v Governor, Arbour Hill Prison at paras 36-38:
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“[T]he retrospective effect of a judicial decision is excluded
from cases already finally determined. This is the common law
position … No one has ever suggested that every time there is a
judicial adjudication clarifying or interpreting the law in a
particular manner which could have had some bearing on
previous and finally decided cases, civil or criminal, that such
cases be reopened or the decisions set aside. It has not been
suggested because no legal system comprehends such an
absolute or complete retroactive effect of judicial decisions. To
do so would render a legal system uncertain, incoherent and
dysfunctional. Such consequences would cause widespread
injustices.”
25. Lord Rodger considered that Murray CJ’s description of the effect of a
decision which alters the law as previously understood could be applied to Scots
law, and that such an approach was also compatible with the Convention:
“For instance, in Smith v Lees 1997 JC 73 the Court of Five
Judges overruled Stobo v HM Advocate 1994 JC 28 and thereby
laid down a more restrictive test for corroboration in cases of
sexual assault. The new test applied to the appellant’s case and
to other cases that were still live. But it could never have been
suggested that the decision meant that convictions in completed
cases, which had been obtained on the basis of the law as laid
down in Stobo, were ipso facto undermined or invalidated.
Similarly, in Thompson v Crowe 2000 JC 173, the Full Bench
overruled Balloch v HM Advocate 1977 JC 23 and reestablished the need to use the procedure of a trial within a trial
when the admissibility of statements by the accused is in issue.
But, again, this had no effect on the countless completed cases
where convictions had been obtained on the basis of evidence
of such statements by the accused which judges had admitted
in evidence without going through that procedure. So, here, the
court’s decision as to the implications of article 6(1) and (3)(c)
of the Convention for the use of evidence of answers to police
questioning has no direct effect on convictions in proceedings
that have been completed. To hold otherwise would be to create
uncertainty and, as Murray CJ rightly observes [in A v
Governor, Arbour Hill Prison A v Governor, Arbour Hill
Prison, para 38], cause widespread injustices. And the
Strasbourg court has pointed out that the principle of legal
certainty is necessarily inherent in the law of the European
Convention (Marckx v Belgium (1979) 2 EHRR 330, para 58).
In A v Governor, Arbour Hill Prison (para 286) Geoghegan J
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said that he was ‘satisfied … that it would be wholly against
good order if convictions and sentences which were deemed to
be lawful at the time they were decided had to be reopened.’ I
emphatically agree. And that policy is, of course, embodied in
section 124 of the 1995 Act which makes interlocutors and
sentences pronounced by the Appeal Court ‘final and
conclusive and not subject to review by any court whatsoever’,
except in proceedings on a reference by the Scottish Criminal
Cases Review Commission.” (para 102)
26. In the subsequent cases of Lang and Hastie v United Kingdom (2012) 55
EHRR SE 7, in which applications were made to the European Court of Human
Rights by persons who had been refused extensions of time to appeal on a Cadder
basis, the court referred approvingly to “the legal certainty the Supreme Court
properly sought to introduce when it limited the effect of its ruling in Cadder” (para
32).
The 2010 Act
27. A legislative response to Cadder had been prepared in anticipation of this
court’s decision, and as earlier explained, the 2010 Act was immediately enacted.
As well as amending the legislation governing the rights of persons arrested or
detained by the police, so as to provide them with a right of access to a solicitor, and
making consequential amendments to legal aid legislation, it amended the
provisions of the 1995 Act relating to references by the Commission as explained
earlier. As a result, in determining whether or not it was in the interests of justice
that a reference should be made, the Commission was required to have regard to the
need for finality and certainty in the determination of criminal proceedings. The
High Court was also given the power to reject references if it considered that it was
not in the interests of justice that any appeal arising from the reference should
proceed; and in that regard it also was required to have regard to the need for finality
and certainty in the determination of criminal proceedings.
28. Although the immediate occasion for the enactment of the provisions of the
2010 Act concerning references by the Commission was the case of Cadder, it is
important to appreciate that those provisions have a wider significance. They are not
confined either to Cadder-type cases or to other cases concerned with changes in
the law. It is inherent in the role of the Commission that it qualifies the principle of
finality in criminal proceedings, otherwise secured by statutory provisions
concerning the time limits for bringing appeals and the finality of the disposal of
appeals by the High Court. The justification for that inroad into finality and legal
certainty is the need to provide a mechanism for the review of cases where a possible
miscarriage of justice comes to light after the exhaustion of rights of appeal. This is
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necessary not only in the interests of the potential victim of a miscarriage of justice
but also in order to maintain public confidence in the administration of justice.
Certainty and finality nevertheless remain important considerations for any system
of criminal justice: the re-opening of cases which have been completed has
significant implications for the victims of crime, and the families of deceased
victims, as well as for those who have been convicted. Public confidence in the
administration of justice is also damaged if the outcome of completed proceedings
appears to be merely provisional. There are in addition more pragmatic
considerations. In a legal system with limited resources, the public interest requires
priority generally to be given to dealing with current cases.
29. In order for these considerations to be taken into account, it is necessary that
the Commission should not merely ask itself whether a miscarriage of justice may
have occurred, but also whether it is in the interests of justice that the case should
be referred to the High Court; and that, in deciding the latter question, it should have
regard to the need for finality and certainty in the determination of criminal
proceedings.
The post-Cadder application to the Commission
30. On 7 May 2010, the day after the refusal of his second appeal, the appellant
made another application to the Commission, raising matters relating to forensic
findings. On 29 October 2010 the appellant also sought to have his case referred on
the basis of the Cadder decision, issued three days earlier. The Commission declined
to make a reference on the grounds relating to forensic findings, saying in a
statement of reasons dated 25 February 2011 that they did not believe that a
miscarriage of justice might have occurred. In relation to Cadder, the Commission
decided to defer their decision until judgment had been given in a number of appeals
to this court. No issue is taken with that decision in this appeal.
31. In response to further submissions on behalf of the appellant, relating to
scientific matters and also making allegations of unfairness and oppression at the
hearing of the second appeal, the Commission declined to make a reference on those
grounds in a supplementary statement of reasons dated 30 September 2011. No issue
is taken with that decision in this appeal.
32. Following the giving of judgment by this court in the case of Ambrose v
Harris [2011] UKSC 43; 2012 SC (UKSC) 53; [2011] 1 WLR 2435 and related
appeals, the Commission addressed the Cadder ground in a statement of reasons
dated 27 January 2012. They considered that, since the Crown had relied upon the
appellant’s admission that sexual intercourse had occurred as corroboration of the
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complainer’s evidence in that regard, and no other corroborative evidence existed,
there might have been a miscarriage of justice.
33. The remaining question was whether it was in the interests of justice that a
reference should be made. In that regard, the Commission noted the requirement to
have regard to the need for finality and certainty in the determination of criminal
proceedings, in accordance with section 194C(2) of the 1995 Act. They noted that
the appellant had been convicted in 2002, long before the decision in Cadder or the
judgments of the European Court of Human Rights on which it was based. They
noted the history of the previous applications and appeals. They stated that they
considered the following matters to be relevant:
(1) The amount of time that had passed since the conviction.
(2) That the appellant had never disputed that he had sexual intercourse
with the complainer, and had relied on the interview at his trial in order to
present his defence of consent.
(3) That, in so far as the Crown had used the interview not only as
corroboration of sexual intercourse having taken place, but also to undermine
the appellant’s credibility, no objection had been taken at the trial (whereas
objection had been taken, successfully, to the admissibility of a further
interview).
(4) That no issue had been raised in the two appeals as to the fairness of
the manner in which the interview was conducted.
In the light of these considerations, the Commission concluded that it was not in the
interests of justice to refer the case back to the High Court.
34. In the light of further submissions on behalf of the appellant, the Commission
confirmed their decision in a supplementary statement of reasons dated 27 April
2012. The submissions argued that the appellant’s case should be regarded as
exceptional, particularly because he had been unrepresented at the hearing of the
second appeal and had lacked the necessary knowledge to raise a Cadder point. The
Commission accepted, as they had in their earlier statement of reasons, that the
appellant could not be criticised for raising the point only after the decision in
Cadder, and considered that the reasons for his not having raised the point earlier
were not relevant to the question of whether it was in the interests of justice to refer
his case. In relation to that question, the Commission adhered to their earlier
reasoning. They emphasised in particular the fact that the appellant had at no stage
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disputed the veracity of what he said to the police, together with the fact that he
relied upon the interview in order to present his defence of consent.
The proceedings below
35. On 13 September 2012 the appellant commenced proceedings for judicial
review of the Commission’s decision not to refer his case back to the High Court on
the Cadder ground. It was argued that the Commission had erred in taking account
of the amount of time that had passed since the conviction, or had in any event
attached undue weight to that consideration. It was also argued that the Commission
should have given greater weight to the adverse impression which might have been
created in the minds of the jury by the appellant’s attitude towards women, as
revealed by the interview: an attitude described as one of flippancy, coarseness,
indelicacy and selfishness. Finally, it was argued that notwithstanding what had
been said by this court in Cadder about the need for finality in criminal proceedings,
the appellant’s case should have been treated as exceptional, particularly since he
had been unrepresented when his appeal was heard, and the Cadder appeal had then
been pending. In those circumstances, it was argued, the High Court should have
advised him to seek an adjournment of the hearing of his appeal.
36. On 24 January 2013 the Lord Ordinary refused the application: [2013] CSOH
13. In a careful judgment, Lord Pentland considered fully the various points made
on behalf of the appellant, and rejected each of them. His decision was upheld by
the Extra Division on 6 November 2013: [2013] CSIH 101.
The present appeal
37. The issues raised by the appellant in the present appeal are stated to be
“whether the Commission erred in law in taking into account the following
considerations, when, had Cadder applied, the interview that provided the
corroboration of the Crown case would have been inadmissible and the appellant
would not have been convicted:
“(1) that the appellant had not disputed the truth of what he told the
police at interview;
(2) that the appellant had not challenged the fairness of the police
interview or its use at his trial in that, before Cadder, there was no
basis upon which to do so; and
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(3) that the appellant made use of the interview at trial, when this
was a course of action decided upon in circumstances forced on the
appellant, namely that the interview was already before the jury.”
38. In relation to the first of these matters, Lord Pentland said:
“[I]t was clearly relevant for the respondents to recognise that
the petitioner has never disputed the truth of what he told the
police in his interview and, in particular, that he has never
suggested that he did not have sexual intercourse with the
complainer. What he now seeks to do is to take advantage of a
subsequent change in the law rendering inadmissible evidence
which was not in dispute at the trial, videlicet evidence that he
admitted having intercourse with the complainer. It would, in
my opinion, be repugnant to the interests of justice if the
petitioner were now to be permitted to invoke Cadder for the
purpose of ruling out uncontested evidence that was essential
to the technical sufficiency of the Crown case at his trial. To do
so would allow the petitioner to transform what was a non-issue
at the trial into an issue of critical importance years later. That
would run counter to the principle of finality and certainty that
is central to the fair working of the criminal justice system.”
I respectfully agree. The fact that the evidence in question was and remains
undisputed is plainly relevant to an evaluation of whether it is in the interests of
justice to make a reference. It would not normally be in the interests of justice to
quash a conviction merely because, under the law as now understood, there was a
lack of admissible corroboration of a fact which had never been in dispute.
39. Counsel for the appellant submitted that, if the appellant had been offered the
opportunity to consult a solicitor, and if (1) he had taken advantage of that
opportunity, (2) he had been advised on corroboration, self-incrimination and his
right to remain silent, and (3) he had exercised his right to remain silent, then he
might not have admitted having sexual intercourse, in which event the interview
would not have provided the necessary corroboration that sexual intercourse had
occurred. That also is a relevant consideration. So too, for that matter, are factors
affecting the likelihood of each of those conditions being satisfied: for example, the
fact that the appellant actually declined to have intimation of his being interviewed
given to any solicitor (para 7 above), the fact that other potentially corroborative
evidence was available, in the form of the semen found on vaginal swabs (para 7
above), and the fact that a person accused of rape might have been advised that the
only defence, if sexual intercourse could be proved to have taken place, was one of
consent, and that the credibility of such a defence would be enhanced if it were put
Page 16
forward at the earliest opportunity. The fact that it was because of the answers given
at interview, and the admissibility of those answers under the law at that time, that
the semen was not subjected to examination so as potentially to provide other
corroborative evidence, is also relevant. The relevance of considerations such as
these does not, however, in any way detract from the relevance of the fact that the
truth of what was said at interview about sexual intercourse taking place was and
remains undisputed.
40. In relation to the second matter, Lord Pentland said:
“I also consider that it was plainly important for the
respondents to acknowledge that in the course of two full
appeals against his conviction the petitioner never challenged
the fairness of the manner in which the police conducted the
interview. Nor did he seek to argue on appeal that the use made
of the interview by the Crown at his trial was unfair.”
I again agree. Counsel for the appellant argued that there was no basis on which the
appellant could have challenged the fairness of the interview or its use at his trial,
before Cadder. But that misses the point. The decision in Cadder established a new
basis on which evidence of answers to police questioning might be inadmissible, but
there were already other well-established grounds of objection, including unfairness
in the conduct of the interview or in the use made of it at the trial. The short point
being made by the Commission was that, in the appellant’s case, unlike some others,
the fairness of the conduct of the interview and the use made of it at the trial had not
been challenged. That was plainly relevant to an evaluation of where the interests of
justice lay.
41. The third matter was not raised in quite the same way before the courts below,
but Lord Pentland accepted that the fact that the appellant had chosen to rely on his
police interview to present his defence to the jury was a relevant consideration.
Again, I agree. Counsel for the appellant argued that this was a course of action
decided upon in circumstances forced upon the appellant, namely that the interview
was already before the jury. That is not a complete answer. Given that the appellant’s
admission that sexual intercourse had taken place was admissible under the law as
it then stood, he was entitled to have the whole of the interview placed before the
jury, as a matter of fairness, so that the jury were aware that the admission was made
in the context of his also maintaining that intercourse had been consensual. The
result was that, although he was entitled to give evidence in his own defence, he did
not have to do so in order for his defence to be placed before the jury: they had
already heard his account to the police. He did not, therefore, have to expose his
account to cross-examination. That afforded him an opportunity which would not
have existed if the interview had been inadmissible. In the event, he availed himself
Page 17
of that opportunity. That was a matter which could properly be taken into account
by the Commission when evaluating the course of action which the interests of
justice required.
42. Counsel for the appellant also argued that the approach to the application of
the “interests of justice” test in section 194C of the 2009 Act which had been adopted
by the Commission in the present case was inconsistent with the approach to the
application of the corresponding test in section 194DA by the High Court in M v
HM Advocate; Gallacher v HM Advocate [2012] HCJAC 121; 2012 SCL 1027. It
was argued that the case of Chamberlain-Davidson v HM Advocate [2013] HCJAC
54; 2013 SCCR 295 was a good illustration of the approach proposed by the
appellant.
43. There are a number of difficulties with these arguments. One arises from the
fact that the High Court has not itself seen its task in applying the interests of justice
test in section 194DA as identical to that of the Commission applying the
corresponding test under section 194C. In M v HM Advocate; Gallacher v HM
Advocate, Lord Justice-General Hamilton, delivering the opinion of the court,
considered the role of the Commission and its relationship with the court, and stated:
“Although this court has been given the power to reject a
reference in language that replicates the provision applicable to
the Commission (section 194DA(1), (2)), it cannot be right for
us simply to duplicate the Commission’s function and give
effect to our own view. In light of the impressive record of the
Commission, it is unlikely that we will have cause to differ
from its judgment on this point. I think that we are entitled to
assume, unless the contrary is apparent, that the Commission
has considered the criteria set out in section 194C and has duly
made its independent and informed judgment on them. In my
view, we should reject a reference only where the Commission
has demonstrably failed in its task; for example, by failing to
apply the statutory test at all; by ignoring relevant factors; by
considering irrelevant factors; by giving inadequate reasons, or
by making a decision that is perverse.” (para 33)
44. As the Lord Justice-General pointed out in that passage, the Commission
makes an independent judgment. It is therefore possible, as was noted in the Report
of the Carloway Review (2011), that “there may be cases in which the SCCRC and
the High Court could reach a different decision on where the interests of justice may
lie” (para 8.2.11).
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45. A further difficulty with the argument is that the expression “the interests of
justice”, which appears in both section 194C and section 194DA, is not susceptible
of a precise legal definition which can be applied mechanically. It requires an
evaluation of a broad nature, based on an assessment of the particular circumstances
of individual cases. Thanks to the thoroughness of the Commission’s reports and the
High Court’s judgments in the present case, this court has access to a wealth of
information about the facts which led the Commission to conclude that a reference
was not in the interests of justice. Its knowledge of the other cases relied on in
argument is derived entirely from the judgments of the High Court in those cases,
and is more limited. Certain points of distinction are however readily apparent.
46. The cases of M v HM Advocate and Gallacher v HM Advocate, which were
decided together, raised the question whether the court should reject two references
under section 194DA. Each reference concerned the admission of a police interview
prior to Cadder. In the case of M v HM Advocate (the subsequent stage of which is
reported as RMM v HM Advocate [2012] HCJAC 157; 2013 JC 153), where the
appellant had been convicted of rape, the statements made during the interview went
to the issue of consent: in relation to that issue, the appellant gave several potentially
incriminating answers to questions put to him. At his trial, he did not accept the truth
of those answers, and gave evidence in his own defence. The interview was then
used in cross-examination, and in the prosecutor’s speech to the jury, to attack his
credibility. There was also a lack of clarity in the verdict. The appellant was still
serving his sentence.
47. In Gallacher v HM Advocate, the appellant made admissions during a police
interview which could be held to show special knowledge of a series of sexual
offences. He claimed that the police had bullied him and briefed him as to the
answers he should give to their questions. That, he maintained, was how he came to
show special knowledge. The court allowed the references to proceed.
48. In each of those cases, the circumstances were very different from those of
the present case. None of the factors referred to in para 37 above appears to have
been present. Most importantly, the statements in question in those cases went to an
issue which was in dispute at the trial and remained in dispute. Their veracity was
not accepted.
49. The case of Chamberlain-Davidson v HM Advocate was concerned with a
conviction for attempted rape, where the appellant had told the police at interview
that he had met the complainer in the street, had said hello, and had grabbed her
wrists when she started to scream. The latter admission was the only corroboration
of the complaint of assault. The Commission made a reference on grounds
concerned with misdirection. They declined to make a reference on a Cadder
ground, for similar reasons to those given in the present case: the appellant had
Page 19
served his sentence; all parties had proceeded in good faith on the understanding
that the interview had been conducted fairly and that its contents were admissible;
the appellant had never denied the veracity of the incriminating statement he had
made; and he had relied on his police interview by way of his defence. The court
decided not to reject the reference under section 194DA: [2012] HCJAC 120.
Subsequently, in the exercise of its power under section 194D(4B) of the 1995 Act
to grant leave for the appellant to found the appeal on additional grounds, the court
allowed additional grounds of appeal to be received, including a ground raising a
question as to the retroactive effect of the decision in Cadder: [2012] HCJAC 122.
In the event, that point was not discussed at the hearing of the appeal. The Crown
conceded that, if there was not a sufficiency of evidence without the police
interview, the appeal must succeed. It succeeded on that basis. Nothing in that case
suggests that the Commission erred in taking account of the matters mentioned in
para 37 above.
50. It follows that the Commission did not err in any of the respects complained
of, as the courts below correctly held.
Conclusion
51. For these reasons, I would dismiss the appeal.
