Joseph Michael Birnie V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Hardie,Lady Paton |
| Neutral Citation | [2012] HCJAC 64 |
| Court | High Court of Justiciary |
| Docket Number | XC93/10 |
| Published date | 22 May 2012 |
| Date | 18 May 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Hardie Lord Bonomy | [2012] HCJAC 64 Appeal No: XC93/10 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by JOSH MICHAEL BIRNIE. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, M C Mackenzie; Drummond Miller
Respondent: Fairley, Advocate depute; Crown Agent
18 May 2012
Introduction
[1] This appeal concerns first, the admissibility of a comment and a subsequent voluntary statement made by the appellant on 14 August 2009 following the termination of a police interview struck at by Cadder v HM Advocate, 2010 SCCR 951; 2011 SC (UKSC) 13; 2010 SLT 1125; and secondly, whether the appellant waived his right to consult a solicitor.
Background
[2] The appellant was charged inter alia as follows:
"(1) On 17 March 2009 at [a given address] you ... did assault and abduct [AR] aged 14 years ... prevent her from leaving the property by locking the door, take possession of her mobile telephone and detain her against her will and did seize her by the body and pin her on a sofa, kiss her on the mouth and neck, place your hand inside her trousers, touch her private parts, and insert your finger into her private parts all with intent to rape her ...
(3) On various occasions between 1 June 2009 and 16 June 2009, both dates inclusive at [a given address] or elsewhere you ... did send by means of a public electronic communications network messages to [LA] aged 13 years ... that were grossly offensive or of an indecent, obscene or menacing character in that they were indecent and obscene; contrary to the Communications Act 2003, section 127(1)(a)."
[3] In the course of the trial in December 2009, the Crown accepted a plea of "Not guilty" to a second charge (with which this appeal is not concerned), and the appellant pled guilty to Charge 3. The appellant was then convicted by the jury of Charge 1 under deletion of the words "prevent her from leaving the property by locking the door, take possession of her mobile telephone" and "all with intent to rape her". On 21 January 2010 the appellant was sentenced to 18 months detention.
[4] In relation to the appellant's interview by police officers, his subsequent comment, and his voluntary statement, Lord Hope set out the relevant facts in the Supreme Court in paragraphs 22 to 26 of Jude v HM Advocate, 2012 SCCR 88, 2012 SLT 75 as follows:
"22 The facts which provide the background to the argument in Birnie's case are as follows. He was interviewed under caution in a police station on Friday 14 August 2009 between 10.34 and 12.20 hrs with a break between 11.18 and 12.06 hrs. At the time of his interview he was 18 years of age. He had been on probation since 2008 [in fact since 12 March 2009] in respect of a charge of breach of the peace with a sexual aggravation, and he was a registered sex offender. He had been convicted on two occasions of a breach of the notification requirements of sections 83 and 94 of the Sexual Offences (Scotland) Act 2003. He had also previously been interviewed by the police as a suspect. As already mentioned in paragraph 1, above, he was not told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for this to be offered to persons detained under section 14 of the 1995 Act.
23 Birnie made no admissions during the first stage of his interview apart from being at the locus with the female complainer [AR] referred to in the abduction charge and kissing her. He said that this was consensual. He was asked during his interview what expression he would use to describe touching his girlfriend's private parts, to which he replied with a question: 'fit like poking her?' When asked to explain what he meant by this, he said that it meant putting his fingers in her vagina. After they had completed their questioning about the abduction the interviewing officers charged Birnie with abducting the complainer [AR], with indecent assault and with two charges of breach of the peace, and they arrested him. He was then cautioned and interviewed in relation to another female complainer, to whom he admitted sending a series of text and email messages. After further questioning he was charged with sending indecent messages to that complainer.
24 Following the interview Birnie was, according to an entry in a police notebook, on the verge of tears. At 12.23 hrs he asked what was happening to him. He was told that he was to be kept in custody over the weekend to appear in Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he burst into tears and said spontaneously: 'I poked her'. He was asked by one of the interviewing officers whether he was referring to the complainer [AR], to which he replied, 'Yes'. He was told to say nothing further but that other officers would attend later to speak to him if he wished to make any further comments. At 12.35 hrs he was asked if he wished a solicitor informed of his arrest and was told that a duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It was not until about two hours later, at 14.28 hrs, that a message was left with the solicitor's secretary to advise him of the arrest. Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone.
25 Birnie then told the police that he wished to make a further statement, which he did at about 13.45 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the enquiry. Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. He replied that he did not. He was asked whether he wished a solicitor to be present while he was making it. He again said that he did not. He was then cautioned and asked whether he understood the caution, to which he replied 'Yeah'. He then said: 'I want to admit poking [AR]. She asked me to do it and we did give each other love bites.' He was asked to say what he meant by 'poking', to which he replied that he meant 'putting your fingers in her vagina'. He then said: 'I never locked her in. I never locked her in her house. I asked her several times if she wanted to leave but she says no. I didn't threaten her in any way.'
26 It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both of these offers..."
Submissions on behalf of the appellant
[5] Counsel submitted that the appellant's comment "I poked her" could not be severed from what had gone before. While it was accepted that an unsolicited admission could be admissible if it was freely given, without pressure or inducement, and not elicited by questioning (Jude, paragraph 30), it was not realistic to regard this comment as voluntary. Even if it could be regarded as voluntary in some sense, the surrounding circumstances were such that the Crown should have decided not to lead it in evidence. Each case had to be determined on its own facts: J...
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