HER MAJESTY'S ADVOCATE v. BARRY McLEAN [2000] ScotHC 96 (5th October, 2000)

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[1] I am now in a position to give my ruling on the objection, which was taken during the course of yesterday afternoon. I do so in the following terms. During the evidence of Sergeant Thomas Craig, Crown Witness 22, Mr Nicol took objection to the leading of any evidence as to what happened when the accused was interviewed under caution at Baird Street Police Station, during the afternoon of 18 April 1999. Sergeant Craig had previously given evidence that the accused had been arrested by him that morning and had been taken to Baird Street Police Station. Sergeant Craig stated that the accused had arrived at the police station around 10.24 a.m. The accused had remained in custody at the police station throughout the period until 12.35 p.m., when the interview under caution began. No charge had been preferred against the accused, prior to the start of the interview. As I understood Sergeant Craig's evidence has already given, although he did not ask any questions during the interview, he had been present throughout.

[2] At the point in the evidence when the objection was taken, the Advocate Depute was seeking to lead Sergeant Craig through Crown Production 12, which is an edited version of the transcript of the interview. That transcript indicates, and Sergeant Craig confirmed, that when the interview began the accused was cautioned to the effect that he had been arrested but not charged in relation to a stolen vehicle, which had been involved in a fatal accident. The caution continued that he was going to be asked questions about "those matters" and that he was not obliged to say anything, but that anything he did say would be tape recorded, noted and might be used in evidence. The transcript indicates that the accused said to the police officers that he understood the caution.

[3] To set this objection in context it is appropriate to refer to some further parts of the factual background. The accused faces an indictment libelling a number of charges arising out of a fatal road accident. Those charges include various statutory offences, including a contravention of section 1 of the Road Traffic Act of 1988, in which it is alleged that the accused was driving motor vehicle registered number H753 AST in Lenzie Road, Stepps, on 17 April 1999. The jury has already heard evidence that Kevin Reilly, a back seat passenger in the car, was killed almost instantaneously after the accident occurred. The jury has also heard evidence from Kevin McConnell, a front seat passenger in the car at the time of the accident, namely late in the evening of 17 April 1999, that the accused was driving the car. Kevin McConnell has also given evidence to the effect that after the accident the accused ran off, before the police had arrived. After the accident, whilst he was still at the locus, Kevin McConnell informed police officers that the accused had been the driver of the car. Other civilian witnesses, namely Gary Lynch and Natalie Graham, have given evidence that earlier that evening the accused was driving the car in the Barmulloch area of Glasgow. At least Gary Lynch gave such information to police officers during the morning of 18 April 1999. None of that evidence as been challenged by Mr Nicol on behalf of the accused.

[4] During the course of the submissions made to me in connection with this objection, it was a matter of agreement between the Advocate Depute and Mr Nicol that the accused had been arrested at his home address. What happened at that time was not explored in evidence, prior to the objection being taken. It was agreed, however, that the accused had apparently arrived at that house during the course of the morning of 18 April 1999, around the same time as Sergeant Craig went there. Before Sergeant Craig went to the house that morning, he appears to have been aware of the existence of evidence to the effect that the accused had been driving the stolen car at the time of the accident. Prior to arresting the accused, Sergeant Craig requested the accused to provide information as to who had been the driver of the vehicle involved in the accident at Lenzie Road, Stepps, the previous evening. This procedure was carried out under reference to the provisions of section 172 of the Road Traffic Act of 1988. Although the Advocate Depute did not have precise information as to what had been said when the request for information was made, she fully accepted that Sergeant Craig had been acting in terms of section 172 of the 1988 Act and I deal with this objection on that basis.

[5] The Advocate Depute's understanding was that when the request for information was made, the accused had stated "I was driving the vehicle at that time". Shortly after the accused made that statement he was arrested and taken to the police station. As I have indicated, although what happened at the house has not been spoken to in evidence by Sergeant Craig, it was a matter of agreement between the Advocate Depute and Mr Nicol. No suggestion was made to me by either counsel that it was appropriate to hold a trial within a trial, before I ruled on this objection.

[6] The relevant provisions of section 172(2) of the Road Traffic Act 1988 are in the following terms:-

[7] There can be no doubt that when Sergeant Craig went to the accused's house, during the morning of 18 April 1999, the police investigation into the circumstances of the accident was proceeding on the basis that the driver of the car was alleged to be guilty of a number of offences to which section 172 applies. Such offences will have included alleged contraventions of section 1, section 170(2) and (4) and section 170(3) and (4) of the 1988 Act of the nature which are included in the charges on the indictment. On that basis, Sergeant Craig was entitled to rely on the provisions of section 172(2)(b) to seek information from the accused as someone falling within the definition of "any other person". Had the accused refused to answer such a request or had he withheld any information he had, then prima facie he would have been guilty of an offence under section 172(3) of the 1988 Act - subject of course to any question as to the compatibility of the provisions of that section with the Convention rights set out in the Human Rights Act of 1998.

[8] Mr Nicol acknowledged in his submissions that armed with the information they had from Kenneth McConnell and possibly from other witnesses, the police had every justification for seeking out the accused for the purposes of either detaining him under the 1995 Act or arresting him and thereafter interviewing him under caution. Indeed, Mr Nicol went so far as to suggest that it had been the duty of the police to do so, standing the information they had already received. In the course of his submissions, Mr Nicol indicated that had no section 172 procedure been gone through and had there been no admission made to Sergeant Craig by the accused at his house, to the effect that he had been the driver of the car, there would have been no basis for his objecting to the admission of the transcript. There was, said Mr Nicol, nothing in the transcript to suggest that the interview had been conducted unfairly. Mr Nicol argued, however, that when Sergeant Craig had requested information from the accused in terms of section 172 of the 1988 Act, the accused had been forced to incriminate himself. Mr Nicol contended that at that time and subsequently, when he was present during the interview at Baird Street Police Station, Sergeant Craig, in his capacity as a police officer, was acting as a servant of the Lord Advocate. Under reference to the case of Brown v Stott 2000 S.C.C.R. 314, Mr Nicol argued that the accused's right to a fair trial under Article 6(1) of the European Convention on Human Rights had been infringed. Mr Nicol contended that the reply made by the accused to Sergeant Craig at his house was inadmissible in evidence in this trial. He contended further that anything said by the accused during the subsequent interview at Baird Street Police Station was also inadmissible, for the reason that the interview under caution was part and parcel of the same process that had been begun by Sergeant Craig at the accused's house. The argument was that because the accused's right to a fair trial had been infringed by the section 172 procedure being invoked against him, anything that the accused said to the police thereafter was inadmissible in evidence against him. That was the position, even when the subsequent statements, such as the transcript of the interview which the Crown now seeks to lead in evidence, had been made by the accused during an interview under caution, an interview which the police were entitled to carry out, and had carried out, without any reference to the provisions of section 172 of the 1988 Act. Indeed, it was accepted by Mr Nicol that in the transcript of the interview no mention is made of what had happened or what was said at the accused's house prior to his arrest.

[9] In addition to referring me to Brown v Stott, Mr Nicol referred to the case of Chalmers v H.M.A. 1954 J.C. 66. He did so for the purpose of supporting his argument that what had happened at the house had tainted the subsequent interview under caution at the police station. Mr Nicol referred in particular to a passage in the Opinion of the Lord Justice General, Lord Cooper, at page 79 in which he states, and I quote:

Mr Nicol argued that the approach taken by the court in Chalmers was supportive of his contention that the section 172 procedure and in particular the reply given by the accused tainted all that the accused subsequently said to the police. He accepted that the accused would probably have been arrested and interviewed under caution, irrespective of what he had said when the section 172 requirement was made of him. The fact of the matter was, however, that the interview had taken place against a background that the accused had responded to the requirement, by admitting that he had been the driver and that the existence of such an admission was known to all those involved in the interview, even if no mention was made of it during the conduct of the interview itself.

[10] In reply the Advocate Depute pointed out that back in April 1999 there was nothing wrong with the use of the section 172 procedure. She submitted that it was clear from Brown v Stott, in particular from the Opinions of the Lord Justice General at pages 341B to 342A and Lord Marnoch at page 344B to C that section 172 had not been ripped out of the statute book. The section remains in existence and falls to be construed as permitting the police to require information, but not permitting the Crown to use any information, given in response to any such requirement, to incriminate the person who provided the information in the event that he subsequently stands trial. The Advocate Depute accepted, again on the authority of Brown v Stott, that what had been said at the house by the accused was clearly inadmissible in evidence. She submitted that it could only be a matter of speculation as to whether the reply had had any bearing on what the police had subsequently done. There was no indication that the police had relied on that reply in deciding to arrest the accused, in deciding to interview the accused under caution or in deciding how to conduct the interview that actually took place. The Advocate Depute submitted that when all the circumstances are considered it was clear that the accused would have been arrested and interviewed under caution, irrespective of what reply, if any, he had made at the time the section 172 procedure was undertaken. The Advocate Depute also argued that in any event the decision of the court in Brown v Stott did not prevent the police or the Crown from relying on any information provided in response to a section 172 requirement in pursuing their investigation of a case such as the present, nor had the court in Brown v Stott accepted the "fruit of the forbidden tree" argument, relating to the admissibility of evidence derived from other evidence, which it is accepted is inadmissible. That argument, namely the "fruit of the forbidden tree" argument, is referred to in passing ( although not by name) in the Opinion of the Lord Justice General at page 332D, as an argument which the Court did not require to address in that case.

[11] Accordingly, even if the police have invoked the section 172 procedure and the accused has given an incriminating reply, the decision as to whether the contents of a subsequent interview under caution are admissible in evidence falls to be resolved, so the Advocate Depute submitted, in accordance with the normal principles of fairness. As no exception was taken to the manner in which the interview had been conducted, the transcript of what was said ought to be admitted in evidence. Chalmers had been concerned with a situation in which there was clearly harshness and oppression. No such considerations existed in the present case.

[12] Subsequent to hearing the submissions on this objection, I have had the opportunity of considering the full report of the Canadian case of Thomson Newspapers Ltd v Canada [1990] 1 S.C.R. 425; 67 D.L.R. (4^th) 161, which is referred to in Brown v Stott. No other authorities were cited to me. In particular, in response to a question posed by me, having regard to the provisions of section 2(1) of the Human Rights Act 1998, both counsel indicated that they were unaware of any European authorities that might have a bearing on the issues which had been raised by this objection. In the time available to me, I myself have had no opportunity to research the question as to whether or not any such authorities exist.

[13] I am quite satisfied that this objection falls to be repelled. I deal with the issues involved in stages. In my opinion, the fact that Sergeant Craig utilised the section 172 procedure to require information from the accused did not by itself constitute an infringement of the accused's right to a fair trial, as that right is protected by Article 6 of the European Convention. Such actings as were undertaken by Sergeant Craig are entirely in accordance with the construction of section 172, which is discussed by the Lord Justice General and Lord Marnoch at pages 341-2 and 344 of the report in Brown v Stott, a construction held by them to be compatible with an accused's Convention rights. If the incriminating reply made by the accused at his house had stood alone and not been followed by any interview, it is clear from the decision of the Court in Brown v Stott that no infringement of the accused's right to a fair trial would have occurred, unless and until the Crown had sought to lead and rely on that reply, as part of the evidence on the charges libelled against him. I refer in particular to the Opinion of the Lord Justice General at pages 340F. No such attempt has been made by the Crown in the present case. Indeed, in taking the evidence of Sergeant Craig, prior to the point at which the objection arose, the Advocate Depute was at pains to ensure that nothing was said in evidence as to what had taken place between the accused and Sergeant Craig at the house, before the accused was arrested. As I have already made clear, nothing in Brown v Stott prevents police officers from exercising their powers under section 172 in respect of a particular individual who they may suspect is guilty of offences to which that section applies.

[14] The next issue to be considered can be focused in these terms: Does the admission of evidence as to what took place at an interview under caution of an accused, when that interview follows upon the accused having made an incriminating reply to a section 172 requirement, automatically constitute an infringement of the accused's rights under Article 6(1)? In my opinion, it does not. The police had power to carry out the section 172 procedure. There is no suggestion that they did so in an inappropriate or unfair manner. Accordingly, there can be no suggestion that illegality, oppression or unfairness tainted the exercise of the section 172 procedure in this case and had an automatically consequential effect upon the subsequent interview, an effect which could not be cured. In my view, whatever may have been said by Sergeant Craig when the section 172 procedure was carried out, an interview of the accused under caution, whether as an individual who had been detained or one who had been arrested, falls to be viewed as a distinct part of the criminal investigation. The interview begins with a clear and unequivocal caution to the effect that the accused being interviewed is under no obligation to say anything but that anything he does say will be tape recorded, noted and may be used in evidence. I do not consider that the mere fact that the interview under caution follows upon the making of an incriminating reply, in the course of a section 172 procedure, has the inevitable consequence that the admission in evidence of the contents of the interview would give rise to an infringement of the accused's Convention rights. Our law proceeds on the basis, and in my opinion on the perfectly reasonable assumption, that when suspects or accused persons are cautioned they understand the cautions administered to them and are able to decide whether or not they wish to respond to any questions they may be asked. I see no reason why a prior section 172 procedure should automatically make the cautioning of a suspect or an accused any less effective, even if the individual being interviewed under caution has at the back of his mind that he has previously admitted to the police, in response to a section 172 requirement, that he had driven a particular car in which the police have an interest. There is no basis for holding that such knowledge, automatically and by itself, would cause the individual concerned to ignore the terms of the caution he had been given.

[15] Another related but distinct issue is whether it can be said that evidence of what happened during the interview of the present accused should be treated as having been derived from what was said by the accused in reply to the section 172 requirement and for that reason held to be inadmissible, because it is tainted as self-incriminatory in the same way as the original reply to the section 172 requirement is tainted. I am not persuaded that should be so.

[16] Standing the evidence the police had before them when they made contact with the accused, I am not persuaded that the only reason or indeed any significant reason why the interview under caution took place was because the accused had admitted having been the driver of the car.

[17] Putting it another way, on the basis of the evidence I have heard and on the basis of what was said about the facts by both counsel during the course of the submissions, I am in no doubt that the accused would have been arrested and interviewed under caution, whatever he had said when the section 172 requirement was being made of him. Moreover, from a reading of the transcript, Crown Production No.12, I see nothing to suggest that the conduct of the interview and in particular the questions which were asked of the accused was dependent on the admission that the accused had previously made at the house to the effect that he had been driving the car at the time of the accident.

[18] In my opinion, if the evidence of what took place at the interview under caution can be led without any reference to what happened at the time of the section 172 requirement being made, such evidence is admissible. In my opinion, that is clearly the situation in the present case.

[19] The position might have been different had reference been made to the section 172 procedure and the accused's incriminating reply during the conduct of the interview. It is possible to imagine situations in which an interviewing police officer might have referred to the accused's earlier admission that he had been the driver, in order to put pressure on the accused or indeed to seek to compel him to answer questions the accused was unwilling to answer or to change replies to questions, which he had already given. In such a situation the Court would require to consider whether the interview had been conducted fairly and, if not, reject the evidence as having been unfairly obtained. In my opinion, no such arguments arise in the present case.

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HER MAJESTY'S ADVOCATE v. BARRY McLEAN [2000] ScotHC 96 (5th October, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/96.html Cite as: [2000] ScotHC 96

Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. BARRY McLEAN [2000] ScotHC 96 (5th October, 2000)