Gordon v Scottish Criminal Cases Review Commission (Scotland)
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Kerr,Lord Clarke,Lord Hughes,Lord Hodge |
| Judgment Date | 22 March 2017 |
| Neutral Citation | [2017] UKSC 20 |
| Date | 22 March 2017 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 5 |
[2017] UKSC 20
Lord Kerr
Lord Clarke
Lord Reed
Lord Hughes
Lord Hodge
Appellant
Mungo Bovey QC
Gerry Coll
(Instructed by Drummond Miller LLP)
Respondent
Gerry Moynihan QC
Chris Pirie
(Instructed by Scottish Criminal Cases Review Commission)
Heard on 13 December 2016
(with whom Lord Kerr, Lord Clarke, Lord Hughes and Lord Hodge agree)
This appeal arises out of an application for judicial review of a decision taken by the Scottish Criminal Cases Review Commission ("the Commission") under section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended ("the 1995 Act"). That subsection provides, so far as material:
"The Commission on the consideration of any conviction of a person … who has been convicted on indictment or complaint may, if they think fit, at any time, and whether or not an appeal against such conviction has previously been heard and determined by the High Court … refer the whole case to the High Court and, subject to section 194DA of this Act, the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII or, as the case may be, Part X of this Act."
The grounds for a reference under section 194B(1) are set out in section 194C:
"(1) The grounds upon which the Commission may refer a case to the High Court are that they believe —
(a) that a miscarriage of justice may have occurred; and
(b) that it is in the interests of justice that a reference should be made.
(2) In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings."
It is also relevant to note section 194DA. So far as material, it provides:
"(1) Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings."
Sections 194C(2) and 194DA were inserted into the 1995 Act by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 ("the 2010 Act"), a piece of emergency legislation which was enacted on the day after this court gave judgment in Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13; [2010] 1 WLR 2601.
These proceedings arise out of the Commission's consideration of the appellant's conviction for rape. The Commission decided not to refer his case to the High Court of Justiciary. They accepted that a miscarriage of justice might have occurred, but they did not believe that it was in the interests of justice that a reference should be made. The condition laid down in section 194C(1)(b) was therefore not met. The appellant challenges that decision on the basis that the Commission's decision was vitiated by errors of law.
The appellant's application for judicial review was refused by the Lord Ordinary, Lord Pentland. That decision was upheld by an Extra Division (Lord Menzies, Lady Clark of Calton and Lord Wheatley). The present appeal against their decision was brought before the introduction of a requirement that permission to appeal should be obtained.
On 12 August 2001 the appellant had sexual intercourse with a woman who then reported to the police that she had been raped. She was medically examined, and vaginal swabs were taken from her for forensic examination. The following day, the appellant was informed by the police that the allegation had been made. As requested, he went to a police station and was interviewed by police officers. At the beginning of the interview he was cautioned. He confirmed that he fully understood the caution and that he had attended the police station voluntarily. He was asked if he wished to have a solicitor advised, but declined. In accordance with practice at the time, and the law as then understood, he was not offered the option to consult a solicitor before the interview, and no solicitor was present during it. When questioned, he freely admitted having had sexual intercourse with the complainer at his flat, and maintained that it had taken place with her consent. As a result of his admission, the semen found on the vaginal swabs was not subjected to DNA analysis. That also was in accordance with the usual practice at the time, when the fact that sexual intercourse had taken place between an accused and a complainer was not in dispute. The appellant was subsequently charged with the rape of the complainer, and also with indecent assaults on two other women.
The subsequent trial took place between 30 August and 5 September 2002. At the trial, the appellant was represented by a highly experienced Queen's Counsel. He pled guilty to one of the charges of indecent assault, and the other charge of indecent assault was withdrawn. In relation to the charge of rape, the Crown relied on the appellant's admission as corroboration of the complainer's evidence that sexual intercourse had occurred, that being an element of the offence which must be proved by corroborated evidence. A videotape of the appellant's interview was therefore played to the jury as part of the Crown case, without objection. Corroboration of the complainer's evidence as to the other essential element of the offence, namely that she had not consented to sexual intercourse, was provided by other Crown witnesses, who gave evidence of her being in a state of shock and distress shortly after her encounter with the appellant, and of injuries which were found when she was medically examined. There was also evidence that a decorative chain on her trousers had been broken, although her clothing was otherwise undamaged.
In cross-examination, the complainer accepted that she had initially given the police an untrue account of where the incident occurred, when she had stated that she had been raped in a lane near the nightclub where she met the appellant, rather than at his flat, some miles away. She explained that she had been disorientated. In relation to the evidence of her being distressed, the line of cross-examination sought to attribute her distress to her consumption of alcohol and medication, and to the appellant's having rejected her at the end of their encounter. It was also established that the complainer initially told the police that she had been taken from the nightclub forcibly, but later said that she left it willingly. She had explained her earlier account by saying that she had been embarrassed to admit that she had gone home with a man she had only just met.
The appellant elected not to give evidence, but relied on the interview as setting out his defence to the charge, namely that the sexual intercourse had been consensual. As a result, he avoided having his version of events subjected to cross-examination.
The appellant was convicted. He was sentenced to five years' imprisonment on the rape charge and admonished for the indecent assault. The sentence was completed long ago.
The appellant's case is fairly typical of rape cases of that period. It was usual for persons accused of rape to be interviewed by the police without having the opportunity to consult a solicitor. It was common for them to accept that sexual intercourse had taken place and to maintain that it was consensual. It was common, in those circumstances, for the police not to complete forensic examination of samples which might have provided independent corroboration of the fact of sexual intercourse, since the accused's admission at interview rendered such examination unnecessary. It was usual for the Crown then to rely on the admission as part of the Crown case at the trial. It was common for the accused to rely on the exculpatory part of the interview in his defence.
The appellant appealed against his conviction for rape on three grounds. The first was defective representation. He claimed that evidence should have been led from a number of witnesses who could have given evidence about such matters as his kissing the complainer in the night club prior to their going to his flat, and the lack of noise from his flat at the material time. The second ground was that the jury had been directed on the law of rape in accordance with the decision in Lord Advocate's Reference (No 1 of 2001) 2002 SCCR 435, which post-dated the incident. The third ground concerned the prejudicial effect of pre-trial publicity. Each ground was considered at first sift (by a single judge) on 20 June 2003. Leave to appeal was refused, the first sift judge giving detailed reasons for his decision. However, at second sift (by three judges) on 23 December 2003, leave to appeal was granted, but only on the defective representation ground. Notwithstanding that decision, on 30 April 2004 the court allowed the appellant to lodge two additional grounds of appeal. The new grounds related to the adequacy of corroboration, and to the directions given on mens rea. At the hearing of the appeal on 29 September 2004, it was only the new grounds which were relied upon. The appeal was refused: Gordon v HM Advocate 2004 SCCR 641.
The appellant applied to the Commission to have his case referred back to the High Court on a number of grounds, namely prejudicial pre-trial publicity, the effect of...
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