Confessions and statements against interest

Question 1

When is a confession admissible?

Answer 1

A confession would normally be hearsay evidence: it is, however, admissible as an exception to the hearsay rule. That rule is uncontroversial and so the law in this area is largely concerned with exceptions to that exception: that is, when will a confession not be admissible?

Note that the term “statement against interest” is more accurate: a statement by the accused may be incriminating and admissible against him even though it does not amount to a full confession (e.g. he admits attacking the complainer but claims this was in self-defence; he admits sexual intercourse with the complainer in a rape case but claims this was consensual).

Question 2

What is the difference between civil law and criminal law terminology?

Answer 2

It is normal to refer to “confessions” in the criminal context and “admissions” in the civil context (Walkers on Evidence, 3rd edn, para 9.1), although practice varies. The issue is of less importance in civil cases, where there is no need to rely on an exception to the rule against hearsay to justify admitting the evidence given the abolition of the rule against hearsay in civil cases by s 2(1) of the Civil Evidence (Scotland) Act 1988, and will not be discussed further here.

Question 3

What does ‘high probative value’ mean?

Answer 3

Confessions are normally regarded as having high probative value: “the confession of guilt by an accused person is prejudicial to his own interests and may, therefore, initially be assumed to be true” (Hartley v HM Advocate 1979 SLT 26 per Lord Dunpark), but there is nonetheless a need for caution in assessing their worth.

Question 4

What is the basic test of the inadmissibility of a confession?

Answer 4

A confession will be inadmissible where it has been unfairly obtained. NB this centres on the question of fairness.
⁃ See e.g. Brown v HM Advocate 1966 SLT 105 at 107 per Lord Justice-General Clyde: “The simple and intelligible test which has worked well in practice ‑ has what has taken place been fair or not?” This requires fairness to the public to be taken into account as well as fairness to the accused (Miln v Cullen 1967 JC 21).

Question 5

Jack v HM Advocate 1999 SLT 749.

Answer 5

Fairness and good faith are not necessarily synonymous.

Question 6

How do you determine whether the statement was fairly obtained?

Answer 6

It used to be thought that this was a matter for the jury (e.g. Balloch v HM Advocate 1977 JC 23), but it is now established that this should be decided by way of a “trial within a trial[ I.e. the issues must be heard by a judge.]”. Here the burden is on the Crown to prove on the balance of probabilities to prove that the confession was obtained fairly.

Question 7

Thompson v Crowe 2000

Answer 7

⁃ The accused was charged with various offences of theft. The Crown tried to lead evidence of an incriminating statement to a police officer. There was an objection to this on the ground that the accused’s replies had been obtained by improper means and the Sheriff was asked to hold a trial within a trial to decide on this issue of admissibility (i.e. whether the statement had been obtained fairly). The Sheriff refused to do so. The accused was convicted.
⁃ On appeal the accused argued that the Sheriff had erred by not holding a trial within a trial. It was held by 5 judges that the question of admissibility was one of law rather than fact so it must be determined by the judge. Thus the Sheriff should have held a trial within a trial.

Question 8

What is the burden of proof?

Answer 8

The burden of proof lies on the Crown to prove on the balance of probabilities[ This contrasts to the fact that the Crown must prove the case overall beyond reasonable doubt.] that the confession was obtained fairly (Platt v HM Advocate 2004).

Question 9

When will a confession be regarded as having been unfairly obtained?

Answer 9

1) Requirement to administer a caution
2) Access to legal advice
3) Manner of questioning
4) Intoxication, illness or mental impairment
5) Suspect’s physical condition
6) Suspect’s age
7) Language

Question 10

What is the requirement to administer a caution?

Answer 10

A caution is a warning that an individual is not required to say anything but that anything they do say may be used in evidence. In what circumstances are the police required to administer one? The answer is that it depends on the “stage” the investigation has reached (Chalmers v HM Advocate 1954 JC 66).

Question 11

What is stage one?

Answer 11

Where the individual is not a suspect. No caution is required

Question 12

Miln v Cullen 1967

Answer 12

⁃ Man was identified as being the driver of a car involved in a collision. He was asked by the police whether he was the driver of the car. He replied yes. He was then cautioned with driving whilst drunk. The procurator fiscal asked the case to be referred to the High Court for some guidance as to whether the evidence (“Yes I am the driver”) could be admitted or not on grounds of fairness to the accused. The court applied the general test of fairness. The court held that because the case had not gone beyond the investigation stage and there had been no interrogation or coercion, there was no unfairness to the accused person. But it was pointed out that when an individual becomes a suspect the decision is more complex.

Question 13

What is stage two?

Answer 13

Where the individual has become a suspect. A caution is normally required here.

Question 14

Tonge v HM Advocate 1982

Answer 14

Two accused detained because they were suspected of being involved in the rape of a young woman. One of the accused was given a full common law caution but Tonge was not given a caution. Both were accused of complicity and made long self incriminating explanations. At this point Tonge still hadn’t been cautioned. Another individual, Gray, gave a confession after caution.

The defence objected to the admissibility of these statements but the judge repelled these objections and convicted Gray and Jack of rape and Tonge of attempted rape.

Tonge and Gray appealed because the statements had been unfairly obtained. The court held that the admissibility of anything said by a detained person is to be decided by the common law under a test of fairness and in this case it was held that in the interests of fairness Tonge ought to have ben given a caution and a failure to do this jeopardised the statements made by Tonge - furthermore the accusations of TOnge being complicit in this rape by the police were made in order to obtain a response (the police were trying to elicit information) So the statements were regarded as being involuntary, not spontaneous and induced by unfair means, so there had been a miscarriage of justice and the appeal was unsuccessful.])

this involved two accused, detained and suspected of being involved in a rape, one was given a full common law caution, the other, Tonge was given no caution, both gave incriminating statements. A third man heard the police were looking for him and turned up voluntarily and in his interview he said it wasn’t his idea but he was there (cautioned and charged). The defence objected to give admissibility of these incriminating statements due to no caution. He argued the statement had been unfairly obtained. The court said admissibility of anything said is determined by the overarching test of fairness and so failure to caution does not necessarily render a confession inadmissible. Because no caution had been administered the statements were not regarded as been voluntary but induced by a desire to incriminate them. So the evidence was held to be obtained by unfair means and the evidence was inadmissible.

Question 15

Wilson v Heywood 1989

Answer 15

**Rule in this case is failure to caution does not necessarily render a confession inadmissible:

Caution given in relation to charge A. Accused confessed to charge A and B. No caution given in relation to charge B. Held that caution in relation to charge A was sufficient to render confession as to charge B admissible.

⁃ The accused was convicted of 5 offences which included two different assaults on separate occasions. During the trial evidence was led which the accused objected to of self-incriminating statements which he had made that were essential to the Crown’s case. He objected because the statements were given after the accused had been cautioned about one of the charges but not the other charge. It was only after he’d been cautioned in respect of the first charge that he admitted being responsible for the second assault as well but no new caution was given at that point.
⁃ Were these statements in relation to the second assault fairly obtained?
⁃ The court held that because the original caution had been given, it was acceptable for the police to question him about other charges that he was facing because he knew he wasn’t obliged to say anything and anything he did say might be used in evidence. [Fairness here — a lack of caution even where someone is a suspect does not necessarily mean the evidence will be inadmissible].

Question 16

cf LB v HM Advocate 2003

Answer 16

A teenage boy was convicted of the rape of a teenage girl. Before trial he was interviewed by the police. They gave him common law caution, explained the purpose of the interview etc. In the course of the interview he said he had had sex with the girl but it was consensual. Here the concern was whether this individual (who had low verbal IQ and difficulty understanding meaning of caution) was under unfair circumstances even though caution had been given. The defence argued that the trial judge had applied the wrong test of fairness, e.g. Whether the average person would be able to understand the caution.t hey argued this should be made in reference to the accused’s understanding of the caution. This was refused. Appeal court said that trial judge had used the correct test and fairness had been determined in the court way.

Question 17

What is the position of individuals other than police officers?

Answer 17

E.g. where a licensing officer comes and asks if you have a TV licence who may not know how to administer a caution.

See Irving v Jessop 1988 for an explanation.

Question 18

Irving v Jessop 1988

Answer 18

⁃ Post office officials asked the accused if she had a tv licence but didn’t give her a caution before doing so. She replied that she didn’t have a licence. She appealed against conviction. The court said the test was a test of fairness as to whether her statement should be admissible. The court held that the Post Office officials hadn’t intended to provoke any kind of incriminating reply, they were simply trying to establish the facts and in making the decision that the statement was obtained fairly the court held that it was relevant that the post office officials were not police officers. This was routine for the Post Office and since they were just trying to obtain the facts they were not required to give a caution.

Question 19

What is stage three?

Answer 19

Where the individual is charged with an offence. A caution is required before charge. A reply to that charge is admissible if a caution was administered (Tonge v HM Advocate 1982), but further questioning regarding that charge is not permitted.

⁃ Questioning on other matters is permitted (Carmichael v Boyd 1993).

Question 20

Carmichael v Boyd 1993

Answer 20

Two men were tried for a number of charges of theft and attempted theft. Some of the crown’s evidence came from interviews with these men which the police officers had undertaken after the men had been charged with one of the offences. The interview continued and they began to talk about other offences for which they hadn’t received a caution. The defence tried to argue that the interview evidence as a whole should be inadmissible because of the lack of caution or because the questioning had continued beyond simply response to the charge.

The procurator fiscal applied to the High Court for guidance on this issue as to whether these statements had been fairly obtained. The court held that although it was clear that the police were not allowed to question the men about things relating to the offence for which they had been cautioned and charged they were allowed to question about these other matters so long as they were unrelated to the crime which the accused had been charged with.]), while the accused may volunteer to make a statement.
⁃ When a person is charged their statements are admissible. Once a person has been charged the police are not allowed to further question you in a way that is intended to withdraw more information, unless this is voluntary.
- NB once a person becomes a suspect they do need to be cautioned, but before they are a suspect they do not [look up***]

Question 21

Can the police delay moving from “stage 2” to “stage 3”?

Answer 21

(i.e. when does a suspect become chargeable?) The best practice is to charge a person very shortly after a caution has been administered. However there is some indication that the police can delay the progression from a person being a suspect to being charged with an offence. The test here is whether someone has become a “chargeable suspect” i.e. someone generating enough suspicion to charge them.

Question 22

Murphy v HM Advocate 1975

Answer 22

⁃ Murphy was arguing that at the time he was being questioned by the police he had fallen into the category of being a chargeable suspect but had not yet been charged - he had been cautioned but had not been charged. The court questioned the appropriateness of the phrase ‘chargeable suspect’ and emphasised that the real test was one of fairness (leaving it to courts in the future to decide what is acceptable). The court also said that if unfairness could be established at one stage of the investigation this doesn’t automatically taint the rest of it.

Question 23

What are other factors which may render a confession “unfairly obtained”?

Answer 23

ii) Access to legal advice
iii) The manner of questioning
iv) Intoxication, illness or mental impairment
v) Suspect’s physical condition
vi) The suspect’s age
vii) Language difficulties

Question 24

What is the history about the access to legal advice?

Answer 24

Formerly it was thought a lack of such access did not result in unfairness except in exceptional cases (e.g. HM Advocate v Aitken 1926 JC 83), and that the lack of any right of access to such advice was compatible with the ECHR (see the cases leading up to HM Advocate v McLean 2010 SLT 73).

However, it has now been held that art 6 ECHR requires such access: see *Cadder v HM Advocate 2010 SC (UKSC) 13 and the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) (CPSA) Act 2010 — this changed the statutory rights of people before interview and a person must have a private consultation with a solicitor before being questioned (s15A).

The boundaries of the right to legal advice have been further developed since (in the “sons of Cadder cases), with the courts being required to consider:

1. In what circumstances such a right begins?
2. In what circumstances legal representation can be waived? [The key question is whether the waiver was voluntary, informed and unequivocal.] (Decline the right to legal advice, and goes on to make incriminating statements, and this are regarded as inadmissible)

Question 25

*Cadder v HM Advocate 2010 SC (UKSC) 13

Answer 25

Held that in order to be compliant with Article 6 ECHR, access to legal advice is required before questioning. the facts of the case are that Cadder was detained on suspicion of a serious assault. he was cautioned and made no comment, he was taken to a police station and cautioned again, and told he was entitled to have a solicitor to speak on his behalf. He declined this opportunity. He was then interviewed and made a number of admissions which later lead to his being charged. the courts decided that in light of the decision in Salduz, The lack of access to legal advice meant that the evidence being led and replied upon meant his Article 6 right had been violated. So if someone is questioned without having had access to legal advice, then that is breaching Article 6. The result o this case is that a number of live ongoing cases were abandoned by the PFS since the only evidence they had to corroborate the charges were evidence made without legal advice.

Question 26

In what circumstances does such a right begin?

Answer 26

Ambrose v Harris 2012
⁃ [This is a series of conjoined cases/appeals].
⁃ 1) The appellant Ambrose found by two police officers sitting in the passenger seat of a car parked by the roadside. It seemed as though he’d been drinking so one of the police officers cautioned him but he didn’t specify what offence Ambrose was suspected of committing.
⁃ The accused was then asked questions and gave some incriminating answers after being cautioned but before having had access to legal advice- he was eventually convicted of contravening the Road Traffic Act with having consumed alcohol in excess of the prescribed limit. He appealed against the decision saying that leading evidence which had been obtained in response to police questioning which was conducted under common law caution (but no access to legal representation) was incompatible with his Article 6 rights.
⁃ 2) In this case M was questioned about an assault at his home address and was cautioned. He gave incriminating answers and was charged. A similar point was made as by Amrose as to whether the giving of incriminating answers while under caution but without legal advice was contrary to Article 6
⁃ 3) In this case G was found in his flat when the police were searching it for drugs. Before the search was conducted he was handcuffed and cautioned. He was then detained and he himself was searched. Before he was searched he admitted to having drugs in his pockets and during the search he was asked questions about the items found and he made some incriminatory statements.
⁃ Held: In all three cases the accused was questioned but was not given access to legal advice because the questioning was just given at the scene. The court held that the correct starting point in considering whether the appellants convention rights had been breached is to try to identify the moment from which he had been effectively charged[ I.e. when have they been charged for the purposes of Article 6 - it isn’t entirely clear when this is.] (for the purposes of Article 6). The court decided that the moment where the individual is no longer a potential witness, where they have become a suspect, gives as good a guide as any as to when the accused has been ‘effectively charged’ triggering access to legal advice.
⁃ In relation to Ambrose (1 above), the court held that he was ‘effectively charged’ when he had been cautioned. But the court held it would be going too far beyond the ruling that this evidence should be inadmissible. So the court were not willing to hold that his Art 6 rights had been breached, but the question as to whether the evidence was fair or not was a live one - it was one for the appeal court to decide.
⁃ The decision as regards M (2 above) was the same.
⁃ However the decision as regards G was that he was a suspect from the time of his first admission to possessing the drugs. Given the fact that he was handcuffed, he was in effect in police custody so the circumstances were regarded as sufficiently coercive for the incriminating answers he gave without having access to legal advice to be found inadmissible.
- So someone should have access to legal advice once they are a chargeable suspect. If it is practicable to offer legal advice in the above situations this will be taken into account when determining the admissibility of the statement/fairness in the way it was obtained.
- So it would be going too far to say that someone must have access to a lawyer being before questioned when they are not a suspect but they are in custody, but signs of coercion or detention it may be unfair to use statements where they have not been given access to a lawyer.

Question 27

In what circumstances legal representation can be waived (Decline the right to legal advice, and goes on to make incriminating statements, and this are regarded as inadmissible)?

Answer 27

The key question is whether the waiver was voluntary, informed and unequivocal.

See McGowan v B 2012

Question 28

McGowan v B 2012

Answer 28

⁃ The accused was detained and cautioned on suspicion of housebreaking. He made no reply to the caution and was searched and found to be in possession of cannabis. He was taken to the police station, detained and told that he was not required to answer any questions other than to give his name and address. He was advised at this point of his right to a private consultation with a solicitor before and during questioning but he waived this right to the consultation. During the interview he made some incriminatory statements and he was cautioned and charged. He made no reply to that charge. The interview continued in relation to the substance he had identified as wing cannabis and was asked again if he wanted to consult a solicitor before continuing. Following the questioning he was cautioned and arrested on a drugs relating charge and he made no reply to the caution.

• The Lord Advocate put the question to the Supreme Court, where it is compatible with the Convention to lead and allow evidence obtained in an interview by a suspect who was advised of his right to legal advice but waived it. The court held that it wasn’t necessarily incompatible with Article 6 for evidence to be led at trial which had been obtained without a suspect being advised by a lawyer prior to waiving his right to silence. The court held the question to be asked was whether there had been a voluntary, informed and unequivocal waiver.
• This is the most important thing to bear in mind where someone declines access to legal advice. It is thus prudent for the police officers to take a record of what happens when someone waives their right to legal advice. Those who find it harder to understand their right to legal advice, may require consultation with a lawyer to decide whether they want to take legal advice (circumstances are important).

Question 29

HM Advocate v Jude 2012

Answer 29

Here is was held that it was clear from the facts that access to a lawyer had been offered and declined, but it was held that given the leading evidence of the statements which had been made, this was not per se incompatible with the convention and whether the statements were admissible.

Question 30

Paul v HM Adv [2013]

Answer 30

Gives us more guidance on waiving the right to legal advice. Here the suspect waived his right to legal consultation with a lawyer at the start of an interview. He was told that any such consultation with a lawyer could be arranged at any point in an interview. Nevertheless, during the questioning the suspect made 6 separate requests for a lawyer and on none o these occasions was a lawyer called. Other factors were (1) police officer questioning was bullying/agrressive (2) other police officer suggested that suspect had committed crime as a retaliation (enticing suspect into admitting crime). At some point int he interview the questioning was stopped for a period of 5 minutes and interview tape was switched off. According to police, the suspect asked how long would it take for a lawyer to get tot he police station. The police said they said they had no way of knowing, and so the suspect apparently decided he no longer wanted to see a lawyer. The suspect then went on to make incriminating statement. The court held that despite this “break” the overall questioning itself was unfair. The way the questioning had been conducted indicated the police’s intent to deny the suspects’s right to legal advice, or at least intended to persuade him to waive his right. The court also said it was very likely that one of the reasons the suspect apparently decided not to see a solicitor was a probable result of his desire for the interview to be over. So this was not voluntary, informed and unequivocal. Everything from the start of the bullying treatment to the end was inadmissible. Suspect was also 17, awake for 24 hours and had been drinking. This was a contributing factor.

Question 31

What are the restrictions on the manner of questioning?

Answer 31

1. Bullying or pressure are not permissible.

2. Threats or inducements may similarly render a confession inadmissible

Question 32

Lord Advocate’s Reference (No 1 of 1983) 1984

Answer 32

Individual detained on suspicion of being involved in the supply of controlled drugs. During a taped interview with 2 police officers various leading questions were asked and some incriminating answers were given. A caution was also given and the questions were not pressed - the detainee freely contributed to the conversation. But during the trial the defence objected that some of the interview answers were not fully voluntary or spontaneous. At the trial the judge sustained this objection and the accused was acquitted.
⁃ The question for the court in the Lord Advocate’s Reference was whether the transcript disclosed any unfairness such that the evidence could be deemed inadmissible. The court held that the trial judge would normally only be justified in withholding evidence given in response to police questioning when the question has been made under caution if the judge is satisfied that no reasonable jury could hold upon that evidence that the answers had not been extracted by unfair and improper and unfair means. This was not the case in this case so that the acquittal was sound.
⁃ [So the test is basically whether a reasonable jury would hold that the evidence was fairly extracted.]
⁃ The court also stated: “[I]mproper forms of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will” are not permitted.”

Question 33

Harley v HM Advocate 1996

Answer 33

⁃ Two accused tried on indictment for theft by housebreaking. Here one of the accused made some incriminating remarks to the police but he denied involvement in the theft. The other accused made incriminating statements to the police but only after they said that if he didn’t answer their questions he would go to the house of a married woman with whom he’d been having an affair and tell the husband.
⁃ The second accused appealed against conviction, objecting to the admissibility of this evidence on the ground that these statements were unfairly obtained. The court held that no reasonable jury could have held that these statements were voluntary - it was obvious that the answers were obtained after inducement / pressure so the court held that the evidence should have been excluded.

Question 34

Do intoxication, illness or mental impairment make confessions inadmissible?

Answer 34

Intoxication, illness or mental impairment all have the potential to make confessions inadmissible but this is not automatic.

Question 35

Thomson v HM Advocate 1989

Answer 35

*Case on intoxication
⁃ The accused was convicted in the sheriff court of aggravated assault. Crucial evidence for his conviction was a statement that allegedly was made by him to a police officer. But at the time it was made he was drunk. The accused appealed on the ground that the jury should have been told to consider whether the statement was fairly obtained or not. It was held that there was no evidence to support that the suggestion that when he made the statement he didn’t know what he was saying - he might have been drunk but there was no suggestion he wasn’t aware of what he was saying. So his appeal was refused and the evidence was fairly obtained and should have been admitted.

Question 36

Do mental state/illness have an impact on the admissibility of a statement?

Answer 36

There is potential for a person’s mental state/illness to have an impact on the admissibility of a statement that he or she makes.

Question 37

HM Advocate v Gilgannon 1983

Answer 37

⁃ This case concerned a voluntary statement that was made by an accused to officers who were unconnected to the case that was related to the charges that he’d been arrested for. Importantly, he had been examined 5 hours earlier by a police surgeon who had concluded that he was mentally subnormal and incapable of giving an accurate account of the circumstances. As a result of this finding, an objection was made about the admissibility of the statement to the unconnected police officers.
⁃ The court held that the physical or mental state of an accused may be an important and relevant consideration in deciding whether a statement is admissible.

Question 38

Higgins v HM Advocate 1993

Answer 38

⁃ A number of people were charged with murder. The relevant fact here was that one of the appellants was said to have been suffering from szichophrenia and also as a result had diminished responsibility so there was an argument about his mental state. This was significant because part of the evidence against him consisted of a statement that he made when he was interviewed by the police. The police surgeon who had seen this appellant shortly after giving the statement found that he was fit to be detained and that he seemed to have insight into his surroundings and what was happening (despite his mental state being open to question normally). In spite of this evidence the trial judge repelled the objection to the admissibility of the statements and instead left it to the jury to decide whether the statement had been fairly obtained.
⁃ The appellants were convicted and appealed on the ground that the statements had been wrongly admitted. The appeal court held that in view of the medical evidence, the decision to repel the objection and leave it to the jury had been correctly made.
⁃ [Thus the mental state of a person did not necessarily render his statement inadmissible.]

Question 39

McClory v MacInnes 1992

Answer 39

*Case on the suspects physical condition:

⁃ The accused was tried for driving with an excess of alcohol in his blood. When found by the police he seemed to be asleep. When he was awoken and asked what happened he replied that he had ‘lost it on the corner at about 1230.’ There was an objection taken to the admissibility of this statement on the ground of fairness - the argument was that his physical condition should mean that his statement was inadmissible. On this occasion the sheriff actually sustained the objection and the procurator fiscal appealed this decision. The court held that the sheriff had applied the correct test which was one of fairness.

Question 40

Codona v HM Advocate 1996

Answer 40

*Case on the suspect’s age:

⁃ A 14 year old girl was tried alongside three adults for murder. Some of the Crown evidence came from an interview which she gave with two police officers in the presence of her father. This interview lasted 3 and a half hours and the transcripts amounted to 91 pages. She was asked on 19 occasions whether she had kicked the deceased and she denied this. The police told her that they didn’t believe her. After a few hours she was told that there was a possibility that there was a possibility she’d be charged with murder and she began to cry. After the interview was resumed there was more questioning and she was asked about the use of a knife during the alleged incident and at this point she admitted to having kicked the deceased on one occasion at the start of the attack.
⁃ At the trial the judge told the jury that they could only admit the evidence of this statement if they were satisfied that the reply that she gave to the police statements were voluntary and hadn’t been elicited by unfair or improper questioning. At the trial she was convicted and appealed. On appeal the argument was that the statement had been unfairly obtained. The court held that the police questioning was of such a character that it indicated their intention to extract admissions which she wasn’t willing to make voluntarily (as a result of the interview length, repeated questioning, she was told she wasn’t believed, in conjunction with her age) and thus this suggested the questioning was unfair and that her statement should be inadmissible.

Question 41

What happens if the accused does not speak English as his first language?

Answer 41

HMA v Olsson 1941
⁃ this involved a Swedish man whose grasp of English was limited. He was charged with murder. He was interrogated on this issue and he made a statement with the help of an interpreter alongside him but 2 days later he asked to see the police officers again and even though he was cautioned and advised that he didn’t have to say anything he gave a second statement without an interpreter. The police officer who’d given him the caution was confident that the caution had been understood by the accused. At the trial the judge refused to admit the evidence because the accused had not been informed of his right to a lawyer and the court held that an interpreter ought to be present when the statement was made.

Question 42

What about statements gathered from eavesdropping or interception?

Answer 42

Much of the discussion above is concerned with cases where the police conduct an interview, but what about eavesdropping or interception? The focus here has been on statements overheard in the police station.

The initially strict approach taken in HM Advocate v Keen 1926 (that these statements were inadmissible) was relaxed in later cases (see e.g. Jamieson v Annan 1988 JC 62).

Question 43

HM Advocate v Keen 1926

Answer 43

4 people tried, 3 charged with murder. At the trial the police officer who had been on duty at the police station when these accused were detained was asked to give evidence. The evidence related to statements he overheard the prisoners shouting to one another when they were held in their cells. During the trial the prosecution asked the police officer what he’d heard and the judge ruled that this question was not allowed so this is an example of the early position in which these statements were held to be inadmissible..]

Question 44

Jamieson v Annan 1988

Answer 44

The appellants were charged with theft and detained in police custody. They began a discussion which was incriminatory - they were talking about things which would potentially incriminate them. The start of this conversation was accidentally overheard by a police officer working in the police station. But once he heard the beginning of the conversation he called over other police officers to join him to hear the rest of the conversation. The prosecution tried to lead evidence of the statements the police officers had overheard. They did lead evidence and the appellants were convicted. They appealed on the ground that with regard to the latter portions of the conversation these statements were overheard intentionally and thus unfairly obtained and should be inadmissible.

The court held that the police officer had done nothing wrong in calling over his colleagues to listen to the rest of the conversation, emphasising the test was one of fairness and because the statements had been entirely voluntary they were deemed to have been fairly obtained and thus admissible.

Question 45

HM Advocate v Higgins 2006

Answer 45

where the police deliberately engineered the placement of suspects in the police station so as to facilitate eavesdropping, is more problematic (and led to the statements being inadmissible):
⁃ In this case the accused were charged with an armed robbery and some of the prosecutions evidence at the trial was obtained by conversations which were overheard by police officers. Police had been posted to listen outside the cells where the accused had been held. So there was a conscious decision to listen to the conversations.
⁃ The accused lodged a devolution minute (the old way of challenging issues on the grounds of human rights) on the basis that by posting the police officers to listen in this was contrary to the accused’s Article 8 rights (privacy).
⁃ The court decided once again that the test is one of fairness and that in this case the police’s actions amounted to intrusive surveillance and in the absence of any authorisation to undertake the surveillance the statements had been obtained in breach of the Regulation of Investigatory Powers (S) Act 2000. As a result it was held that this statement was also contrary to Article 8 and thus inadmissible.

Question 46

Can the police use an undercover officer to evade the rule on cautioning?

Answer 46

The police clearly should not be able to use an undercover officer or third party to evade the rule on cautioning

Question 47

HM Advocate v Graham 1991

Answer 47

⁃ The accused was tried in the High Court for conspiracy including serious assault and the police had already interviewed and cautioned the accused person because he was a suspect but they caught wind of the fact that he was planning to have a meeting with a businessman in which they were expected to discuss matters which related to the police enquiry. So the police arranged the businessman to wear a radio transmitter to record the conversation and because the evidence they obtained during this meeting was the most incriminating evidence they had the prosecution tried to lead this at the trial.
⁃ The defence argued that this evidence had been unfairly obtained. The court held that any evidence that would have been inadmissible if it had been obtained by a police officer who was questioning without due caution would be inadmissible if it was obtained by some third party who knew that the conversation was being overheard by the police officers. The court also held that the rules of fairness and fair-dealing had been flagrantly transgresses so any reasonable jury would decide these statements had been obtained involuntarily. So the evidence was inadmissible.
⁃ [So the police cannot avoid the rules around cautioning by using undercover police officers or third parties.]

Question 48

Is there anything wrong with listening in on another conversation?

Answer 48

This is unclear

Question 49

HM Advocate v Campbell 1964

Answer 49

⁃ This illustrates the limits of when the police can listen in to another conversation that is going on. The case involved a man who would later be on trial for murder. He arranged to meet with a newspaper reporter to make a statement about the incident. He told the reporter not to bring the police with him. But the reporter went to the police and it was arranged that the reporter would go to meet the individual along with the policeman disguised as a second reporter.
⁃ During the meeting the accused gave the police officer some bloody trousers and made an incriminatory statement about the murder. Even though the policeman was there he didn’t take an active role in the discussion but after this incriminatory statement was made he revealed his identity and cautioned the accused person.
⁃ At the trial the prosecution tried to rely on this evidence but the defence objected. The judge sustained the objection and held that the accused must have been treated as being under suspicion at the time the statement was made and that the policeman was present there only for the purpose of hearing the statement, so the caution should have been administered before the statement was made. Thus the evidence was inadmissible.

Question 50

In which case was the decision in Campbell criticised?

Answer 50

Weir v Jessop 1991

Question 51

Weir v Jessop 1991

Answer 51

⁃ In this case evidence that was obtained by deception was held to be admissible. The police officer went around to the house of somebody suspected of selling drugs and had a warrant to search for the drugs. But before executing the warrant the police officer rattled the letter box of the accused and at the time another police officer was hidden but listening in. A woman came to the door and asked the police officer what he wanted. He asked if it would be possible to buy drugs from the man who lived in the house.
⁃ The suspect came out the house and the police officer paid for the drugs with a marked note. The police officers then left and later on the search warrant was executed and the marked note was found in the home of the suspect. During the trial the defence tried to argue that this evidence had been improperly obtained and thus should be inadmissible on the basis that the police officers had essentially induced him to commit the crime - that this amounted to coercion or inducement to commit the offence.
⁃ The judge at the trial repelled this objection and the accused was convicted.
⁃ He appealed and it was held that the evidence that was obtained by the police officers was merely evidence of investigation they had carried out - so although the police officer had deceived the accused there had been no pressure or encouragement or inducement so the conduct had been entirely fair, so the appeal was refused. [In making this judgement the court held that the evidence could have been inadmissible if the accused had been reluctant and the police officer had encouraged him to commit the offence.] The court also criticised the decision in Campbell stating that it was hard to understand why the court had held that the statement was involuntary because it was the accused who had approached the newspaper reporter and volunteered to make the statement.

Question 52

What are the rules on surveillance subject to?

Answer 52

Surveillance is subject to the procedures of the Regulation of Investigatory Powers (S) Act 2000 (and the ECHR), a failure to follow these rules does not necessarily lead to inadmissibility

Question 53

Gilchrist v HM Advocate 2005

Answer 53

⁃ This concerned a police officer who had received information that the appellants and others had been involved with supplying controlled drugs. Authorisation was sought and granted under the 2000 Act for surveillance to happen. But the authorisation was invalid. During the period of surveillance the appellant was seen taking possession of a bag of cannabis.
⁃ The appellant argued that conducting this kind of surveillance without valid authorisation amounted to a breach of Article 8 ECHR and so to rely on this evidence during prosecution would amount to a contravention of his Article 6 right to a fair trial.
⁃ The Crown countered this argument by saying that even if there was a breach of Article 8 it doesn’t follow that this evidence should be inadmissible because in order for this evidence to be obtained, there was no need for the surveillance to take place since it happened in a public place.
⁃ The court held that the question as to whether there has been a breach of Article 8 should be considered separately from the question of whether there had been valid authorisation under the 2000 Act and when the appellant was observed taking possession of the cannabis this hadn’t involved taking any private information - it all happened in public. So the outcome was Article 8 hadn’t been breached and although under the 2000 Act the surveillance hadn’t been strictly authorised, it was still admissible.

Question 54

Is listening in on the commission of a crime problematic?

Answer 54

Listening in on the commission of a crime itself is relatively unproblematic.

See Weir v Jessop (No 2) 1991 above [ But in this case the court held that it could have been decided differently if the accused had been encouraged to commit the crime.]

Question 55

What happens where the accused is encouraged to commit the crime?

Answer 55

Matters are different if the accused is encouraged to commit the crime - this may amount to entrapment. Entrapment is strictly speaking a plea in bar of trial - this is a plea that is made by the accused prior to the start of pleadings arguing that the trial shouldn’t go ahead.
⁃ Entrapment occurs when evidence is obtained in a way that is calculated, deceptive etc.

Question 56

Brown v HM Advocate 2002

Answer 56

⁃ 4 accused went to trial on a charge of conspiracy to steal motor cars. Evidence was led at trial by undercover police officers who posed as prospective buyers. The accused were convicted and appealed on the basis that this was entrapment arguing that they had encouraged the crime to take place.
⁃ The court held that because the plea of entrapment had never been properly raised as an issue during the trial itself and because there was no evidence from which it could be inferred that the police had actually instigated the crime and that if it wasn’t for their involvement the crime wouldn’t have occurred, the evidence was deemed to be admissible.
⁃ The court mentioned that if the question of entrapment does arise then it is for the defence to establish that there has been oppression (this is the term used to describe the type plea in bar of trial) rather than for the Crown to establish that there has not been.

Question 57

When may an individual be required to make a statement by virtue of a statutory provision?

Answer 57

Sometimes a person will be required to answer a question by statute.
⁃ On the ECHR implications of this:
⁃ Brown v Stott 2001
⁃ The accused had been asked whether she was the driver of a car. Under the Road Traffic Act it is compulsory to give an answer to this question. She answered that she was the driver and the question was whether her Article 6 right to a fair trial had been breached.
⁃ The court held that her Article 6 right had not been breached because the rule against self-incrimination was not absolute and must be balanced against the public interest. Here, the public interest in enforcing road traffic legislation outweighed her right not to incriminate herself.

Question 58

Is a caution required for a person answering a question by statute?

Answer 58

Where a person is required to answer a question by statute, a caution is not required and would be inappropriate given the requirement to answer: Foster v Farrell 1963. But it is necessary that the statement is asked for by someone who is authorised to require that the statement be given.

Question 59

Styr v HM Advocate 1993

Answer 59

In theory a statement made in such circumstances (whena person is required to answer a question by statute) can still be held inadmissible as being unfairly obtained.

Question 60

What is a ‘mixed statement’?

Answer 60

This is an area of the law which caused considerable confusion, resulting a series of decisions culminating with *McCutcheon v HM Advocate 2002 SLT 27.

A “mixed statement” is a term used to refer to a statement by the accused, outside of court, which has both incriminatory and exculpatory elements. Clearly the Crown should be entitled to lead evidence of the incriminating aspects of the statement, which would be admissible as a statement against interest.

Question 61

What about the exculpatory elements?

Answer 61

First attempt: Hendry v HM Advocate 1985 (Full Bench): Accused charged with attempted murder. He made a statement that he had struck the alleged victim (incriminatory) but that he only did this in self-defence (exculpatory). During the trial the accused gave no evidence so the trial judge told the jury that these exculpatory parts of the statement could not be admitted - they were hearsay - but the incriminatory part could be admitted against him. On appeal the court held that in these kind of circumstances the trial judge should direct the jury that any incriminatory statement is competent evidence against the accused but any exculpatory statement could not be admitted to exonerate him.

Second attempt: Morrison v HM Advocate 1990 JC (seven judges): It was held that the decision in Hendry was obviously unfair”. On appeal the court held that when a mixed statement is led by the Crown or where the defence leads the mixed statement as evidence and the Crown does not object to it the entire statement is admissible.

Third attempt: McCutcheon v HM Advocate 2002 SLT 27 (nine judges): The court held that Morrison is not quite right: only the Crown can lead this evidence. The law is now as set out at para 16 of Lord Justice-General Cullen’s opinion in that case:
⁃ “The main rules which apply are as follows: (i) It is a general rule that hearsay, that is evidence of what another person has said, is not admissible as evidence of the truth of what was said. (ii) Thus evidence of what an accused has been heard to say is, in general, not admissible in his exculpation, and accordingly the defence are not entitled to rely on it for this purpose. Such evidence can be relied on by the defence only for the purpose of proving that the statement was made, or of showing his attitude or reaction at the time when it was made, as part of the general picture which the jury have to consider. (iii) There is, however, an exception where the Crown have led evidence of a statement, part of which is capable of incriminating the accused. The defence are entitled to elicit and rely upon any part of that statement as qualifying, explaining or excusing the admission against interest.”

Question 62

How does the Carloway Review see this area of law?

Answer 62

⁃ “The current law on the admissibility of ‘mixed’ and ‘exculpatory’ statements made by a suspect during a police interview is not based on a rational and balanced approach to the relevance of statements. It is highly complex and potentially confusing to juries and others in the criminal justice system. It is at odds with the principle of the free assessment of evidence unencumbered by restrictive rules; and it fails to take account of the role of the police interview as part of the trial process.” [para 7.4.19]

Lord Carloway recommended that the distinction between “incriminatory”, “exculpatory” and “mixed” statements be abolished, and that all statements made by accused persons to the police (or other investigators) should be admissible in evidence, unless there were some other rule prohibiting the statement’s admission. The Carloway Review has also recommended the abolition of the “fairness” test for the admissibility of incriminating statements, suggesting that such questions should be decided solely by reference to the ECHR.

Note that the Criminal Justice (Scotland) Bill currently before the Scottish Parliament contains provisions to implement most of the Carloway recommendations.