Johnston v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 12 May 1993 |
| Docket Number | No. 25 |
| Date | 12 May 1993 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Murray, Kincraig
Evidence—Admissibility—Taped interview—Police questioning—Statements by appellant—Question and answer session with police following upon arrest—Appellant arrested but not charged and giving interview to police—Whether taped interview admissible
The appellant was convicted of murder in the High Court of Justiciary. Initially he had been interviewed as a prospective witness along with others. The police thereafter became suspicious of the appellant's involvement and cautioned him at common law after which the appellant gave the police an account of his arrival at the locus of the murder and admission to the deceased's house. This account was not taped but in the course of it the appellant made a highly incriminating statement. The appellant was then arrested. Shortly after his arrest, and without yet being charged, the appellant was interviewed a third time by police officers and this interview was taped. The appellant was reminded that he had been cautioned and that he had been arrested and it was a murder investigation which was being carried out by the police. At his trial the appellant objected to the admissibility of the evidence of the third interview on the ground that, as he had been arrested, it had not been open to the police to question him further. The trial judge (Lord Prosser) repelled that objection and left it to the jury to determine whether the evidence had been fairly obtained having regard to the fact that the police had reached the advanced stage of arresting the appellant. The appellant thereafter appealed to the High Court of Justiciary by way of note of appeal against conviction.
Held (1) that, although it was plain that once a person had been arrested and charged he was under the protection of the court and ought not to be interrogated by the police, the same result should not follow merely because a person had been arrested; (2) that arrest might be justified on less material than was required for charge and there was no justification for a general rule of law that arresting a person would debar the police from ordinary questioning provided that the questioning was not unfair; and (3) that as the appellant had been arrested and told the general nature of the charge in respect of which the arrest was made the police were entitled to question the appellant provided that the ordinary rules of fairness were observed which issue of fairness had properly been left to the jury by the trial judge; and appealrefused.
Opinion reserved per Lord Murray on whether the effect of detention under sec. 2 of the Criminal Justice (Scotland) Act 1980 had been to displace any common law rule which might previously have allowed incriminating answers elicited by police questioning to be admissible in evidence if elicited after an accused had been arrested but before he had been formally cautioned, charged and taken into custody.
Derek Johnston appeared on an indictment raised at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, the libel of which set forth that: "[O]n 19th June 1992 you did, with your face masked, enter the house occupied by Samuel Clark Murray at 1 Blackmuir Place, Tullibody, and there assault said Samuel Clark Murray, born 7th April 1922, aged 70 years, strike him on the head with a piece of brick or similar object, knock him to the ground and cause his head to strike the toilet, repeatedly kick him on the head and body, repeatedly stamp on him, tear open his shirt, seize hold of his private parts and compress same, and stab and strike him repeatedly on the head and body with a knife and did murder him and further did rob him of a knife, a packet of cigarettes and a bottle of rum."
The cause came to trial before Lord Prosser and a jury in the High Court of Justiciary at Kirkcaldy between 12th and 19th October 1992. On 19th October 1992 the pannel was convicted.
The pannel thereafter appealed against conviction to the High Court of Justiciary, the grounds of appeal being adequately set forth in the opinion of the court.
In his report for their Lordships' consideration, Lord Prosser set forth, inter alia, that: "The appellant was interviewed at Alloa Police Station by the C.I.D., approximately between 6 a.m. and 7.15 a.m. The officers concerned were Inspector Robertson and Detective Sergeant Price. The statements and answers said to have been given by the appellant fall into three distinct phases. (1) Initially, the appellant had not been cautioned and was asked a number of questions. In particular, it was put to him that Mr Murphy [a night watchman] remembered a knife being on the floor beside Mr Murray and [he] was asked whether he remembered seeing it. After he replied to the effect that he was sure there had been no knife, he was informed that, because of all the circumstances, the police were suspicious of his involvement in the injuries, and at 6.45 a.m. he was cautioned at common law. (2) The appellant then gave an account of his arrival and admission to Mr Murray's house, and continued as follows. “I just went into the toilet and I skelped him with a brick. I skelped him over the head. Then I kicked him on the head, that was it. Then I had the knife and I was going to cut him but he was already cut.” This statement, utterly different from earlier statements and plainly highly incriminating, was immediately followed by arrest. (3) Shortly after his arrest, and without yet being charged, the appellant was further interviewed by Inspector Robertson and D.S. Price, this interview being taped .... The interview is recorded as having started at 6.50 a.m. Inspector Robertson went over the content of earlier interviews up to the point where the appellant had told him that he did not remember a knife on the floor. He then explained how at that stage he had become suspicious and had cautioned the appellant, and quoted to him the incriminating statement which I have just quoted. He reminded the appellant that he had signed below that entry in his notebook, and went on to say,inter alia: “I arrested you in relation to the incident at Blackmuir Place, and at the moment obviously it's a murder investigation until we find out the full background to it, until it's fully investigated. It obviously starts off as being a murder, O.K., and that's what you were arrested for a short time ago ....” He went on to tell the appellant that he had certain rights now that he had been arrested and asked him whether he wanted a lawyer. Thereafter, he went on to acknowledge that he was “a wee bit limited” as to what he could ask the appellant, now that he had been arrested, but said that there were a couple of points he would like to ask him about. He then re-cautioned the appellant. The appellant having acknowledged that he understood this, Inspector Robertson went on to remind him of Mr Murphy's evidence about the knife, and asked the appellant whether he could tell him what happened to that knife. The answer to this is recorded as “I threw it away in a garden,” and subsequent answers are recorded as expanding on this to the effect that he had had the knife in his hand, that he went to the back door, and flung it away in the next-door garden, as he thought over to the right, where he had seen that it landed on the grass. Inspector Robertson proceeded to ask him about tears on his shirt, and this led to a passage in the interview in which the appellant is recorded as indicating that this was to be used in some way as a mask, and that he had not meant to kill Mr Murray, but just to batter him. Specifically, there is an answer saying that Mr Murray went to the toilet, the appellant had a brick behind his back, and he hit Mr Murray with the brick. The interview went on until 7.15 a.m., and covered a substantial number of matters. Objection was taken by counsel for the appellant to the admissibility of all three phases of the interview by the C.I.D. I repelled the objection, and as regards phases (1) and (2), I think that in the end of the day it was accepted not merely that at these phases fairness would be a matter for the jury, but that there was no real issue of fairness, with caution having been issued when suspicion focused on the appellant, and no questions having been asked to elicit the statement which followed upon caution. Correspondingly grounds (1) to (6) of the appeal are limited to the events which followed upon arrest. Moreover, the original objection, and as I understand them the grounds of appeal, do not turn upon any circumstantial unfairness specific to this particular case. A number of possible bases for seeing the questioning as unfair were canvassed during the trial; and the interrelation between the interview, the interviewing officer's knowledge of actual discoveries at the locus, and issues as to the cause of death were all gone into. But when the objection was taken the submission as I understand it was not that an otherwise legitimate post-arrest question and answer session must be seen as unfair in the particular circumstances. It was rather that any post-arrest question and answer session should be regarded as illegitimate, in the same way as any question and answer session after formal charge. The arguments presented in favour of equiparating a post-arrest but pre-charge question and answer session with the post-charge situation were based in some measure upon alleged “unfairness”. But this was a general unfairness, common to all cases: it was submitted that it would be unfair if the prohibition on questioning which arose after formal charge could be deferred simply by delaying the charge, despite arrest, and it was also said that it would be unfair if arrest could lengthen the period of detention without formal charge. The submission was, I think, that these forms of unfairness were inherent in any gap of time between arrest and charge. That being so...
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