Her Majesty's Advocate V. Stephen Ronald
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2007] HCJ 12 |
| Court | High Court of Justiciary |
| Date | 27 April 2007 |
| Published date | 04 October 2007 |
| HIGH COURT OF JUSTICIARY [2007] HCJ 12 | |
| OPINION BY LORD HODGE in the cause HER MAJESTY'S ADVOCATE against STEPHEN RONALD ________________ |
AD: McSporran, Solicitor Advocate
For Panel: Burns QC and Campbell, Advocate
27 April 2007
Introduction[1] This is an application by minute raised as a preliminary issue at a continued preliminary hearing. The application is to exclude the concluding part of the police interview with the Minuter, Stephen Ronald, (Pro 5) which took place on 5 December 2005 towards the end of his period of detention which started at 1308 hours and ended at about 1908 hours, when he was arrested.
[2] The ground on which this application is made is that the answers which the Minuter gave at pages 65 to 68 of the transcript of that interview are inadmissible (a) because the information which the police used in questioning the Minuter at this stage was derived from inadmissible evidence and (b) because the answers were elicited in an unfair manner.
[3] The onus being on the Crown to satisfy the court that the evidence was admissible, the Advocate Depute led the evidence of two police witnesses. The first was PC Gordon Ross who spoke to the Minuter at Drylaw police station when he attended there voluntarily and who, in the company of PC Ewing and the Minuter, viewed photographs and video footage on the Minuter's mobile phone. The Advocate Depute also led the evidence of DS Duncan Morrison, who conducted the interview with the Minuter at St Leonard's Police Office. I also saw a video of the relevant part of that interview (pp.59-68 of the transcript). Mr Burns led the evidence of the Minuter. I was not shown the photographs or video footage from the Minuter's mobile phone.
[4] The Advocate Depute referred me to two authorities, namely Thompson v Crowe 1999 SCCR 1003 and Lord Advocate's Reference (No 1 of 1983) 1984 JC 52. Mr Burns QC referred me to those two authorities and also to Chalmers v HM Advocate 1954 JC 66, Hopes and Lavery v HM Advocate 1960 JC 104 and Steele v HM Advocate 1992 SCCR 30.
[5] The Advocate Depute founded principally on Thompson v Crowe but referred, as an alternative formulation of the appropriate test, to the statement by the Lord Justice General (Emslie) in Lord Advocate's Reference (No 1 of 1983) (above) at p.59 where he stated that a judge would normally be justified in withholding answers from a jury only if he were satisfied that no reasonable jury could hold upon the evidence that the answers had not been extracted from the suspect by unfair or improper means. I am satisfied that it is appropriate to apply the test in Thompson v Crowe. That is the decision of a Bench of five judges which overruled the case of Balloch v HM Advocate 1977 JC 23 from which the Lord Justice General derived the formulation which I have mentioned. On the authority of Thompson v Crowe, it is for the judge and not the jury to decide on the admissibility of statements made by a suspect to the police. Accordingly the "no reasonable jury" test has no place in the determination of the admissibility of evidence in this context.
[6] As Mr Burns submitted, there are two bases for exclusion of evidence of such a statement. First, the judge should exclude a statement if it was taken in circumstances which render it inadmissible under any rule laid down by the law. Secondly, he should exclude such a statement if he is not satisfied that it was obtained fairly. See Thompson v Crowe at p.1033 E-F.
[7] In relation to the second basis, the test is one of fairness in all the circumstances, having regard not only to the means by which the interview was conducted but also other circumstances which might place the accused in a position of such disadvantage that he could understand neither the situation he was in nor his right not to answer the questions which were put to him. See, for example, B v HMA 2003 SLT 662.
The facts[8] Following a complaint of a sexual nature against him, the Minuter went voluntarily to Drylaw police station where he spoke to PC Ross and PC Ewing. The Minuter was very co-operative and gave them an account of what had occurred between him and the complainer on the previous night. In giving that account he explained that there were images of himself and the complainer on his mobile phone. He allowed the police officers to view the still photographs and three short sequences of video which he had recorded on his phone. These showed the Minuter performing various sexual acts on the complainer. PC Ross in his evidence explained that during the video scenes the complainer did not speak; the only noise recorded on the phone was the rustling of the bed clothes. The complainer was seen to be lying motionless and PC Ross expressed the view that she was asleep or unconscious when the sexual acts recorded on film, including penetrative sexual intercourse, occurred. After the police officers had viewed the pictures and video footage on the phone, PC Ewing detained the Minuter under section 14 of the Criminal Procedure (Scotland) Act 1995. The police officers then took the Minuter to St Leonard's police station where DS Morrison and Acting DC Angela Edmunds interviewed him. Before the interview began, PC Ross explained...
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