Scottish High Court of Justiciary Decisons

On 25th June 1958, the judgment of the Court was delivered by the Lord Justice-General,—

LORD JUSTICE-GENERAL (Clyde).—After a prolonged and elaborate trial in the High Court, Glasgow, on a series of charges, the appellant was convicted, and he has appealed against the conviction to this Court. At the conclusion of the trial the jury unanimously found him guilty of the second charge in the indictment, which was a charge of theft; by a majority found him guilty of the third charge, which was also a charge of theft; unanimously found him guilty under the fourth charge of the capital murder of Mrs Watt, her sister Mrs Brown, and her daughter Miss Watt; unanimously found him guilty of the murder of Miss Isabelle Cooke under the sixth charge; and unanimously found him guilty of the seventh and eighth charges, which related to the capital murder of Mr and Mrs Smart and of their young son, and also to the theft of a motor car from the garage at their house. On the murder and capital murder charges the Advocate-depute moved for sentence, and sentence of death was duly pronounced.

The accused has put forward six separate grounds of appeal upon which it is maintained that the convictions cannot stand. Each of these grounds has been forcefully argued before us in the last two days in a conspicuously clear and cogent speech by the appellant's counsel, and we are completely satisfied that he has placed before us all the necessary material which we require in order to deal with every one of these grounds of appeal. In recognition of the services which he has so faithfully carried out on his client's behalf, I shall in this case not content myself merely with giving our conclusions on the various grounds of appeal, but I shall deal as shortly as I can with the arguments put forward in support of each of them. The first ground of appeal is related to the confessions of the appellant, and as it covers all the main charges, I shall, as counsel did, leave it to the last. I shall deal first of all, just as he did, with grounds two to six.

[His Lordship then dealt with matters with which this report is not concerned]—This brings me to the sixth ground of appeal, which relates to the murder of Isabelle Cooke. The evidence for the Crown here was the appellant's confession, plus the fact that the appellant led the police to the place where they found that the appellant had buried the murdered girl's body and the fact that the appellant showed them where he had hidden one of her shoes just before, or immediately after, he had murdered her. The argument for the appellant was that all the evidence relating to the finding of the body and the shoe was so closely related to, and bound up with, the confession itself, that it could not constitute legal corroboration of the confession, as the presiding Judge directed the jury that it could. It was submitted that, in order to constitute proper legal corroboration, there must be some independent fact incriminating the accused, altogether apart from the statements or confessions which he may have made. If, it was said, the confession was rejected as inadmissible, the facts which came to light in consequence of it must be rejected also; and a passage in Alison on Criminal Law, vol. ii, p. 584, was founded on in support of this contention. But if the confession is not rejected, and was properly before the jury and was accepted by them, then by the law of Scotland the confirmation of the contents of the confession by the finding of the murdered girl's body and the shoe in the very field where the appellant has confessed that he buried them, and in the very spots where he had confessed that he had hidden them, can be sufficient corroboration to entitle the jury to convict the appellant. The matter is precisely covered in terms which might have been written for this case in a passage in Alison on Criminal Law, vol. ii, at p. 580, where the learned author says:

"If a person is apprehended on a charge of theft, and he tells the officer who seized him, that if he will go to such a place, and look under such a bush, he will find the stolen goods; or he is charged with murder or assault, and he says that he threw the bloody weapon into such a pool, in such a river, and it is there searched for and found; without doubt, these are such strong confirmations of the truth of the confession, as renders it of itself sufficient, if the corpus is established aliunde, to convict the prisoner."

We were referred to the case of Connolly v. H. M. Advocate . But I can see nothing in that case which in any way detracts from the clear and unequivocal statement which I have just quoted from Alison. Indeed in that case the present point did not arise. For in that case there was a series of quite independent facts which, in the view of the Court, constituted all the corroboration of the confession which was needed. As the Lord Justice-Clerk indicated towards the end of his opinion, it was not necessary for the Court in that case to consider whether, and to what extent, the evidence establishing the truth of the confession could serve the additional function of providing legal corroboration of it. In the present case we are satisfied that the direction of the presiding Judge in regard to the finding of the body and the shoe, to the effect that they could constitute corroboration of the confession, was quite proper and correct.

That leaves only the first ground of appeal, which is undoubtedly the important one in the present case. The law of Scotland goes further than many other legal systems in protecting a person who is detained by the police from any risk of being driven or cajoled or trapped into admissions of guilt, even though this may complicate the quite legitimate detection of crime by the authorities: so anxious is our law to secure that such persons get fair play under our system of criminal administration, and so firmly-rooted in our law is the principle that no man is bound to incriminate himself. Although this is all true, there is nothing to prevent a man who is so detained by the police, or who has even been charged with a crime, from making a voluntary statement to the police if he chooses to do so. And it is perfectly proper that such a statement, if made, should be proved in evidence to the jury as one of the features for them to consider in deciding whether the crime has been committed by the accused. But the test is always whether that statement was fairly obtained. To be a voluntary statement which can be proved before a jury, the statement must have been freely given, not given in response to pressure or inducement, and not elicited by questioning other than what is directed simply to elucidating what has been said. (See the recent decision of Chalmers v. Lord Advocate 1954 JC 66 .) In several of the cases in the past difficulties have arisen as to the fairness of questions put by the police in the course of their inquiries into the crime, but it is unnecessary to consider that aspect of the problem in this appeal, because, in the present case, no questions were in fact put by the police in connexion with the obtaining of these particular statements.

The contention put forward by the appellant's counsel was that the presiding Judge should have ruled the statements in this case to be inadmissible as evidence, because the appellant was induced to make them by being promised that, if he did so, his father would be released from a charge of theft or reset then hanging over him. No dispute arises or could arise in this case as to the propriety of the method whereby the presiding Judge determined this question of fairness. He precisely followed the procedure laid down in the case of Chalmers to which I have referred, and the sole issue on this ground of appeal is therefore whether the statements were truly voluntary or were induced by promises made by senior police officials who thus obtained the statements from him.

On this matter the appellant is in this difficulty. His own evidence which he gave is of no assistance to him at all, for it paints an utterly extravagant picture of the police threatening to implicate the appellant's family, and in particular his father, in the Smart and Cooke murders, unless the appellant confessed to the whole series of murders of which he has since been convicted. The presiding Judge had no hesitation in completely rejecting such evidence as being quite unreliable. He had the opportunity of seeing the witnesses, and on this matter we cannot differ from the conclusion to which he came on it.

To make out this ground of appeal, therefore, the appellant has perforce to rely on the senior police officers' evidence which was led for the Crown, evidence which the presiding Judge accepted, and evidence from which admissions of inducement having been held out must be established. But every single one of these officers emphatically denied on oath that any inducement whatever, or any promise of any kind, was held out to the appellant at any stage in return for any of these confessions. Indeed more than one of them made it plain that the father was already out of police control and in the hands of the Procurator-fiscal, and the police therefore could not even have been in a position to hold out any inducement about his release. On each occasion it is clear that the initiative for making the statement came from the appellant and from the appellant alone. On each occasion the officer concerned warned him quite properly of the inadvisability of making any statement at all, and of the dangers in which it might involve him if he chose to do it. They were quite definitely discouraging him from committing himself to paper as he did on three occasions. On each occasion he was made aware by them of his right to have legal assistance before he made his statement, but he stubbornly refused to have it. Indeed the police on their own went out of their way to try to get a solicitor to act for him, but they were unable to secure the services of the family's solicitor or of another solicitor whose name was given to the police by the family's solicitor. The appellant was thirty-two years of age. He was in good health and, on the evidence, in full possession of his faculties. The evidence to which we have listened on this question of the circumstances surrounding the confession has satisfied us that he was fully and rationally aware of what he was doing and deliberately made up his own mind to unburden his soul of the dark deeds which he narrated with such convincing detail in the statement which is production number 142. We can find no evidence of any inducement, far less threat or pressure, from the police. On the contrary their conduct in this difficult and anxious episode is a model of propriety and fairness. It may be that the appellant confessed to his crimes because he was afraid that his father might otherwise be implicated in them. But that is not inducement by the police to make a confession. At the best for the appellant it shows that he may have been induced to make the statements by a feeling of remorse for what he had done and a desire of his own not to implicate others in the crimes he had committed. In these circumstances the evidence led before the presiding Judge amply justified the course which he took in allowing the confession evidence to go before the jury, and this first ground of appeal accordingly fails.

There are just two points that I should add in a case as unusual as this one. In the first place, all the material considerations relevant to the various issues were in fact placed before the jury by the Crown with their usual fairness; including the mental state and the degree of responsibility of the appellant for what he is alleged to have done. The jury's verdict on the murder charges demonstrates that they unanimously affirmed that he was not even suffering from any lack of mental responsibility which could have reduced the crimes from murder to culpable homicide. The second thing is this; throughout the trial every facility was afforded to the appellant to develop his defence to the various charges, and it is clear that no advantage of any kind whatever was taken of his decision in the course of the trial to proceed to conduct his defence for himself. He has now exhausted every step available to him under our system of justice to escape from the due penalty for his crimes. This appeal will be dismissed; and in terms of section 4 (3) of the Criminal Appeal (Scotland) Act, 1926, we shall fix Friday, the eleventh day of July next, as the date for the execution of the sentence passed on the appellant at his trial in Glasgow.