APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Bonomy Lord Drummond Young	[2012] HCJAC 111 Appeal No: XC422/11 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in APPEAL AGAINST CONVICTION by JAMIE BALNAVE HAGGERTY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Gilfedder & McIness (for Ian Moir & Co.)

Respondent: Stewart, QC, AD; Crown Agent.

5 September 2012

[1] On 3 November 2010 the appellant was convicted in the High Court in Greenock of a charge in the following terms:

"On 12 April 2010 at [an address in Kilmacolm], you Jamie Balnave Haggerty also known as Jamie Dawson or Haggerty did whilst acting with others, whose identities are meantime to the prosecutor unknown, assault [the complainer, a man then aged 70], residing there, and did punch him on the head, force your way into said property, force him to the ground, place a knife against his head and body, bind his wrists with handcuffs, repeatedly kick him on the head and body, drag him about the house, bind his wrists and legs with a quantity of rope, belts and tape, threaten him with violence, repeatedly strike him on the head and body with a knife, place a towel over his head, threaten to sexually assault him, threaten to cut off his fingers and gouge out his eyes, place a cloth in his mouth and a belt around his head and repeatedly demand a quantity of money and drugs from him, all to his injury and permanent disfigurement and you did rob him of a sum of money".

The verdict was by a majority. The appellant was sentenced to an order for lifelong restriction with five years set as the punishment part.

[2] The present appeal relates to the admissibility of evidence obtained indirectly as a result of a police interview that did not comply with the criteria laid down in Cadder v HM Advocate, [2010] UKSC 43. The evidence established that the complainer had been very seriously assaulted in his own home by three men and had been robbed by them of a substantial amount of money. The critical issue at the trial was whether the appellant had been identified as one of those responsible for the crime. Evidence was led from a number of witnesses, including the complainer, which indicated that the appellant might have been one of those responsible. The complainer identified the appellant as one of his assailants, both in an identification parade and in court, and he gave evidence that on two occasions the attackers had used the name "Jamie". Another witness gave evidence that she had driven the appellant and two companions from Port Glasgow to Kilmacolm at about the time of the attack. After letting the three men out of her car she waited for some time; the men returned, but they could not agree where they wanted to go and she drove away. The daughter of the woman who drove the car gave evidence to similar effect. The driver had herself been charged with participation in the offence, but the charge against her had been withdrawn on the day before the trial.

[3] Evidence was also led from Paula McDonald, who was a former girlfriend of the appellant. She gave evidence that she saw the appellant on the night when the robbery took place. She described him as drunk and cocky, and said that he had a large amount of money which he had not had earlier. She further gave evidence that in the course of a taxi journey with the appellant that evening he had admitted to her his part in the robbery. He stated that he and other men had been looking for drugs and had gone to the wrong house, but had attacked the old man who lived there. He said something about the man's being stabbed and that he, the appellant, had obtained "two grand". In cross-examination she was asked about the details of interviews with the police and about her relationship with the appellant.

[4] The appellant gave evidence. He stated that it had been his birthday the day before and he had obtained some money from his sisters and his mother. On the night in question he had gone by bicycle to visit his two sisters in Elderslie and Paisley, and could therefore not have been involved in the robbery. That evidence was supported by his two sisters. It was obviously rejected by the jury.

[5] The appellant was detained on 22 April 2010 and interviewed by police that morning. The interview was conducted in accordance with standard practice; the appellant was informed that he was not bound to answer questions but that if he did so the answers might be used in evidence. He asked more than once for a lawyer to be present but, in accordance with standard practice at the time, this request was refused. He refused to answer a significant number of questions. He stated early in the interview that he had spent 12 April at home, and had been with a woman named Paula McDonald. He described her as "a friend/girlfriend", but was unable to provide contact details to the police. At a later stage he repeated that he spent the afternoon of 12 April at home, and was asked if anyone could verify that. The appellant said that someone probably could, but refused to give any name, although he was asked whether Paula McDonald had been there. After approximately an hour and a half the police learned that the appellant might be suffering from autism, and they suspended the interview to allow the presence of an appropriate adult. When the interview resumed the appellant was again asked specifically what he was doing on the evening of 12 April between 7.30 and 8.30. He stated that he had not been in Kilmacolm but had been in Paisley. One of the police officers suggested that he should state everything that he could to prove his alibi, whereupon the appellant again referred to Paula McDonald, and said that he had been with her on 12 April. He further indicated that she lived in the Thrushcraigs area, near Paisley.

[6] The police subsequently contacted Paula McDonald and took a statement from her. This led to her evidence being led at the trial. The decision of the Supreme Court in Cadder was issued on 26 October 2010, the date when the trial started. The appellant's police interview was only referred to obliquely during the trial; a Crown witness, Detective Constable Steven Hendrie, gave evidence that the appellant had stated during the interview that he had had nothing to do with anything that had happened in Kilmacolm. No reference was made to the content of the interview. The interview was significant, however, because it led the police to Paula McDonald, who proved to be an important witness.

[7] An appeal has now been taken against the appellant's conviction on the basis that any evidence that resulted from the police interview was inadmissible. It was accepted that the answers given by the appellant during the interview were not relied on in the Crown case. Nevertheless, it was contended that the interview was unlawful per se, in view of the decision in Cadder, and that accordingly any evidence whose existence was only discovered through the interview was inadmissible. In case law in the United States such a doctrine has been referred to as the "fruit of the poisonous tree".

[8] In Cadder the question at issue was whether incriminating statements made during a police interview without access to legal advice could be adduced in evidence. The court answered that question in the negative, following the earlier decision of the European Court of Human Rights in Salduz v Turkey, [2008] ECHR 1542; 49 EHRR 19. It should be noted that in Salduz the fundamental statement of principle, found in paragraph 55 of the opinion of the Grand Chamber, concluded by stating that "The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction". Thus the ratio of Salduz appears to be confined to the use of incriminating statements. In Cadder it is suggested (at paragraph 48) that the Salduz principle cannot be confined to admissions resulting from police questioning, but extends to incriminating evidence obtained from elsewhere as a result of lines of inquiry to which the detainee's answers have given rise. Nevertheless, that suggestion was rejected in the later decision of the Supreme Court in HM Advocate v P [2011] UKSC 44. That case continues the impact of Salduz to a limited range of evidence obtained as a result of improper interrogation.

[9] In HM Advocate v P a police interview was conducted without access to legal advice. The accused, who was suspected of assault and rape, stated during the interview that he had taken a powdered substance shortly before the alleged offence took place and had reacted adversely. He was asked whether anyone could back up how he reacted to the powdered substance, and he gave the name and address of a friend. The police subsequently took a statement from the friend, who spoke to the accused's reaction to taking the substance. He also, however, described a telephone conversation with the accused on the morning following the alleged offence during which the accused described meeting a woman the previous night and having consensual sexual intercourse with her. The Crown sought to lead that evidence. Thus the critical question in the case was "whether the Salduz principle extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether the principle does not extend to evidence which, although its existence was derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crown's case" (paragraph 4). The Court's conclusion was expressed as follows (paragraph 27):

"[T]here is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under article 6(1) and 6(3)(c) of the Convention. It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. The leading of such evidence will be a breach of the accused's Convention rights unless there are compelling reasons to restrict the right of access: Cadder, para 55. It is another thing if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence with which he has been charged. So far as the accused's Convention rights are concerned, there is no rule that declares that evidence of that kind must always be held to be inadmissible. The question whether it should be admitted has to be tested, as in domestic law, by considering whether the accused's right to a fair trial would be violated by the leading of the evidence".

[10] Reference was made to domestic law, and in particular to the leading cases of Lawrie v Muir, 1950 JC 19, and Chalmers v HM Advocate, 1954 JC 66: HM Advocate v P, at paragraphs 15-18. While decisions in this area of law tend to be fact-specific, Chalmers is of some assistance in the present case. In that case the accused, who was aged 16, was convicted on a charge of robbery and murder. During the investigation of the crime, he had been taken into custody by police and was subjected to an interrogation that the court held to be unfair; the resulting statement was not tendered in evidence by the Crown. Immediately after that statement was given, the accused was questioned further about certain matters contained in it, and in consequence of answers that he gave he was taken by police officers to a cornfield near the locus of the murder, where the purse of the deceased was found at a spot pointed out by the appellant under police surveillance. The court held that not only was the statement made under interrogation inadmissible in evidence; the evidence relating to what happened at the cornfield was also inadmissible. The episode in the cornfield was related to the interrogation in two ways: it followed immediately in point of time, and the question of what had happened to the purse had been raised specifically during the interrogation. Thus the visit to the cornfield under police surveillance was regarded as "part and parcel of the same transaction as the interrogation" (LJ G Cooper at 1954 JC 76); consequently the unfairness of the interrogation must also attach to the visit to the cornfield. The Lord Justice General concluded:

"The significance of the episode is plain, for it showed that the appellant knew where the purse was. If the police had simply produced, and proved the finding of, the purse, that evidence would have carried them little or no distance in this case towards implicating the appellant. It was essential that the appellant should be linked up with the purse, either by oral confession or by its equivalent -- tacit admission of knowledge of its whereabouts obtained as a sequel to the interrogation".

[11] The foregoing passage is important in analyzing the decision in Chalmers, because it indicates the critical evidential importance of the events in the cornfield; it was not the fact that the deceased's purse was found that mattered, but the fact that the accused knew where it was. It was the evidence of that knowledge alone that linked him with the robbery and murder. Consequently the episode in the cornfield, involving the accused's taking the police to the purse, was in itself a form of statement, and it was a statement that followed straight on from and arose out of the improper interrogation. Thus the discovery of the purse was not in any way independent of the accused's responses to illegitimate questioning. That must be contrasted with a case where in response to impermissible questioning the accused disclosed the existence of a source of evidence that was quite independent of himself. That was the position of the accused in HM Advocate v P, and in our opinion it is the position of the present appellant. In P the appellant disclosed the existence of a witness who could, and did, corroborate part of his account of events on the night in question. Quite independently of that, however, that witness provided evidence that was highly relevant to an essential aspect of the case against the accused. In the present case, the appellant disclosed a witness who would it was said support his alibi. In fact that witness gave a police statement, and subsequently gave evidence, that was highly incriminating of the appellant. The position is in our opinion indistinguishable from P.

[12] Against that background, we are of opinion that the law may be summarized as follows. When a suspect is questioned by police without legal advice in such a way that the Salduz principle is infringed, or where police questioning is held to be unfair at common law, the statements made by the suspect in answer will not normally be admissible in evidence. This applies not only to the actual terms of the statements made in answer but also to any actings of the suspect, such as those in Chalmers, that function as answers to the police questioning. The rationale of this rule is the privilege against self-incrimination; incriminating statements made by a suspect will only be admitted in evidence where there is no significant doubt that they have been obtained fairly and with access, if desired, to legal advice. Where, however, a suspect discloses the existence of an independent source of evidence that in fact turns out to be incriminatory, that does not infringe the privilege against self-incrimination because the source of the evidence is quite independent of the suspect; the incrimination comes not from the suspect but from another source altogether. Normally, therefore, the fact that a suspect in the course of police questioning discloses the existence of an independent source of evidence does not engage the Salduz principle at all; that is what was held in P. In such a case, however, the court must, as always, ensure that the admission of such evidence does not result in the trial's being unfair; that is recognized in P, in the passage quoted above at paragraph [9] (paragraph 27 in P).

[13] So far as the present case is concerned, the police interviews of the appellant did not comply with Cadder; consequently the answers given to police questioning would not have been admissible in evidence (and they were not in fact used by the Crown during the trial). That result does not, however, apply automatically to evidence that is discovered through information given during the interview. If the police follow leads given by the appellant's answers and thereby discover evidence that is independent of the appellant's answers, that evidence is not inadmissible per se; it will only be inadmissible if the overall result is to render the trial unfair. It is accordingly necessary to consider whether the trial of the appellant was rendered unfair by the use of the information obtained during the interview relating to Paula McDonald.

[14] In our opinion the trial was not rendered unfair by the use of that information. The appellant first mentioned Paula McDonald's name at a very early stage in his first interview. The appellant had stated that he had spent 12 April at home, apart from possible visits to the shops, library or job centre. He was then asked whether he was with anyone on that date. That was a very straightforward question. Moreover, it was a question that was quite capable of helping the appellant's position, because such a person might provide him with an alibi. In response to the question the appellant gave the name of Paula McDonald. He was then asked about his relationship with her and how he knew her. He answered those questions, describing her as "a friend/girlfriend" and accepting that she had stayed at his flat. The police asked how they could get in touch with her if they needed to, and the appellant stated that he did not know.

[15] The interview was suspended to allow the interviewing officers to consult. Those officers then received information that the appellant might be suffering from autism, and an appropriate adult was present when the interview was resumed. After the resumption reference was again made to Paula McDonald. One of the police officers pointed out that, if she were in the appellant's position, she would say everything that she could to prove her alibi. The appellant then mentioned Paula McDonald, and said that he was with her on 12 April. Ultimately the appellant gave sufficient information for her to be traced. Throughout both portions of the interview the tone of questioning appears moderate; there is no suggestion of cross-examination or interrogation. Indeed no such suggestion was made on behalf of the appellant; the submission on his behalf was that the interview was inadmissible on Salduz grounds, not because it was unfair at common law. It is true that the interviewing officers learned that the appellant appeared to suffer from autism, and that eventually steps were taken to deal with that problem, but the critical information that enabled Paula McDonald to be traced was given during the second part of the interview, when an appropriate adult was present. Moreover, at the time of the interview it was far from clear what the import of Paula McDonald's evidence would be. Her name had been given by the appellant as a person who could substantiate his alibi, and if she had done so that would obviously have worked in his favour. In fact her evidence was seriously adverse to the appellant's position, but that evidence was quite independent of anything that occurred at the interview.

[16] Against the foregoing background we cannot see anything unfair in the steps taken by the police to contact Paula McDonald and take a statement from her. Nor can we see anything unfair in leading her evidence at the trial; that evidence was independent of any statements made by the appellant during his interview and when Paula McDonald gave evidence no reference appears to have been made to the interview. For that reason we are of opinion that the appeal must be refused.

[17] A further argument was presented by the Crown based on section 118(8) of the Criminal Procedure (Scotland) Act 1995. That subsection provides that no conviction in solemn proceedings shall be quashed on account of the competency or admission of evidence at the trial unless the objection to that evidence was timeously stated. The decision in Cadder was issued on 26 October 2010, the first day of the appellant's trial. The only reference to the appellant's police interview occurred on 29 October, during the evidence of DC Steven Hendrie, one of the interviewing officers. It was argued, accordingly, that the appellant's counsel should have objected timeously to the admissibility of evidence of the interview. No such objection was made, however, and the result is said to be that the objection cannot now be founded upon as a basis for setting aside the appellant's conviction. For the appellant it was submitted that section 118(8) should be given a limited scope in relation to objections based on contraventions of the European Convention on Human Rights. We have decided that there was no contravention of the appellant's Convention rights and, more fundamentally, that there was no unfairness in the procedure followed in this case to obtain and make use of the evidence of Paula McDonald. It is accordingly unnecessary for us to determine whether section 118(8) is relevant.

[18] For the reasons given previously, this appeal is refused.