R.m.m. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Wheatley,Lord Eassie |
| Judgment Date | 29 November 2012 |
| Neutral Citation | [2012] HCJAC 157 |
| Published date | 30 November 2012 |
| Date | 29 November 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC797/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Menzies Lord Wheatley | [2012] HCJAC 157 Appeal No: XC797/11 OPINION OF THE COURT delivered by LORD EASSIE in NOTE OF APPEAL AGAINST CONVICTION by R M M Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Carroll, solicitor advocate, McClure; Drummond Miller LLP
Respondent: Prentice QC, solicitor advocate, AD; Crown Agent
29 November 2012
Introductory
[1] The appellant in this appeal, which follows a referral by the Scottish Criminal Cases Review Commission, was tried in the High Court of Justiciary in May 2009 on an indictment containing two charges. The first charge alleged that on 9 March 2008 within a flat at an address in Glasgow the appellant supplied cocaine to AJM, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971. The advocate depute conducting the prosecution withdrew that charge in the course of the Crown case. The second charge on the indictment libelled that on the same date and in the same flat the appellant -
"(002) ...did assault AJM, residing there and did seize hold of her arm, pull her into the livingroom, kiss her face and neck, force her to the floor, lie on top of her, hold her down, pull her hair, pull down her top and bra, kiss, lick and handle her body, struggle with her, pull down her trousers and underwear, repeatedly force her legs apart, lick her private parts, insert your fingers into her private parts, follow her into a bedroom, force her onto a bed, lie on top of her, seize her by the throat, hold her down, forcibly remove her underwear tearing same, all to her injury and .. did repeatedly rape her".
The jury, by a majority, convicted the appellant of that charge but under deletion of the word "repeatedly", which occurs in the last line.
[2] The largely undisputed background to the events which occurred in the flat on 9 March 2008 may be summarised from the evidence of the complainer and from the appellant who, in addition to undergoing two interviews with the police (the terms of which were before the jury), gave evidence at the trial. It appears that at around Easter 2007 the appellant and the complainer formed a relationship which lasted for a short number of weeks during the course of which the complainer fell pregnant. When the appellant was advised of the pregnancy, it appears that he wished to resume the relationship but the complainer was unwilling to have further contact, at least until the baby was born. Nonetheless, in October 2007 she and the appellant, along with the complainer's mother, met to purchase a pram for the baby. The baby, a boy, was born in January 2008 and the appellant visited the complainer and his baby son on the day following the birth, the complainer having arranged for him to be told of the birth some minutes after its having taken place. Arrangements were made for the appellant to have contact with the baby and in February 2008 the complainer and the appellant resumed their relationship for a period of some three weeks before it was terminated by the complainer. During that resumption they had sexual relations. The appellant continued to see the baby after they ceased to live together and on the evening of 1 March 2008 the appellant looked after the infant while the complainer went out with friends.
[3] It was also arranged that on 8 March 2008 - the day preceding the date libelled in the charges - the appellant should again look after his son. He arranged to, and did, meet the complainer in the centre of Glasgow and took care of the baby while the complainer went to have her hair dressed. The appellant later went to the flat specified in the charge (in which the complainer lived) at about 1930 hours whereupon the complainer left to go out to a party. She returned from the party at sometime between 0130 hours and 0230 hours on 9 March 2008. The complainer accepted in her evidence that when she returned home after the party she was "under the influence" of alcohol and may have been slurring her speech; she had also taken cocaine at the party. She opened a bottle of wine and she and the appellant sat down to talk and to drink the bottle of wine. They also consumed some cocaine.
[4] At this point the respective accounts begin significantly to diverge. In brief, according to the complainer, the appellant began to hug her (which she did not wish). Eventually she went to the bathroom. She was followed there by the appellant. He then began to rant at her, telling her she looked a mess. He noticed blood on her jeans which the complainer said was menstrual blood but the appellant accused her of having had sexual relations earlier that evening.
[5] According to the complainer, the appellant then grabbed her arm and pulled her back into the living room. There thereupon occurred, according to the complainer, what can briefly be described as rape involving some physical force. Following that episode in the living room the complainer then ran through to the bedroom. The complainer's evidence on this chapter is more fully summarised in paragraph 14 of the Commission statement of reasons[1].
[6] The complainer's account of what occurred after she had run through to the bedroom was to the effect that she was followed there by the appellant whereupon - again putting matters very shortly - a second forcible rape occurred. A more
detailed summary of the complainer's evidence may be found in paragraphs 15 and 16 of the statement of reasons[2].
[7] The different version of events given by the appellant was to the effect that while drinking the wine and consuming the cocaine the complainer appeared to be flirting with him and suggesting getting back together. They then started kissing and - again putting matters very shortly - they engaged in consensual sexual intercourse in the living room for a time before the complainer expressed reservations whereupon their coition stopped. A fuller summary of the appellant's evidence is contained in paragraphs 31 to 33 of the statement of reasons[3].
[8] Following the cessation of that sexual activity in the living room the appellant's account was at one with that of the complainer to the extent that matters then moved to the bedroom of the flat. Having first studied the log of calls on the complainer's mobile telephone - which the appellant accepted he had no right to do - a quarrel then ensued which involved his taking her by the arms and later grabbing hold of her by her wrists. He grabbed at the waistband of her underwear which led to the waistband being ripped. The appellant then picked up the baby who had awakened; he declined to leave and the complainer went to the flat of a neighbour BA. After a time the complainer returned, picked up a wrap of cocaine and told the appellant to go because she had telephoned to the police. Again, a slightly fuller summary of the appellant's account of the episode in the bedroom is to be found in paragraphs 36 and 37 of the statement of reasons[4]
[9] The appellant did not leave the flat after being told that the police had been summoned. He began to feed the baby. And on arrival the police took an initial statement from him, following which he was, at 0515 hours, arrested for "domestic assault".
[10] Later in the morning of 9 March 2008, at 0808 hours, while in custody following his arrest for domestic assault, the appellant was interviewed at length by police officers in respect of the allegation now made of his having raped the complainer. He was not offered any opportunity to obtain any legal advice before
being interviewed, as was then the practice prior to the decision in Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13. Evidence of the terms of the two
successive interviews conducted by the police on 9 March 2008 was adduced and relied upon by the Crown at the trial.
The grounds of appeal
[11] Two grounds of appeal were advanced before us.
[12] The first of those grounds may be referred to as the "post Cadder ground". It relates to the use made at the trial by the prosecution of the terms of the interviews conducted by the police on 9 March 2008, in circumstances in which the appellant had not been afforded the opportunity of receiving legal advice. The second ground of appeal relates to the rationality of the jury's verdict in the sense that, against the evidence at the trial, the deletion of the word "repeatedly" rendered the verdict ambiguous and incapable of satisfying the requirement under Article 6 of the European Convention on Human Rights for a reasoned judgment. This ground may be conveniently referred to as "the reasoned judgment" ground.
The post Cadder ground
[13] It is accepted by the Crown that the leading of evidence of the interviews which had been conducted by the police on 9 March 2008 without any opportunity having been given to the appellant to obtain legal advice constituted a breach of the appellant's right, under Article 6 ECHR, to have such an opportunity to obtain legal advice. The Crown further accepts that, on that account, evidence of the questioning of the appellant by the police was inadmissible. The issue arising in respect of this ground of appeal is therefore concerned with the consequences of that conceded breach. There was no dispute between the parties to the appeal that the test to be applied was that set out by Lord Hope of Craighead at paragraph 64 of the opinion which he delivered in Cadder v HMA:
"[64] Counsel for the appellant invited the court simply to allow the appeal and quash the conviction. But that would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all these circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them (McInnes v HM Advocate)...."
It was also accepted that the test described...
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