Jamie Balnave Haggerty V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Drummond Young,Lady Paton |
| Judgment Date | 05 September 2012 |
| Neutral Citation | [2012] HCJAC 111 |
| Date | 31 August 2012 |
| Published date | 05 September 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC422/11 |
| 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: _______ |
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...
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