Tonge v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 11 June 1982 |
| Date | 11 June 1982 |
| Docket Number | No. 18. |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Dunpark.
Evidence—Admissibility—Statements made by accused to police while a detainee—Form of caution—Criminal Justice (Scotland) Act 1980 (cap. 62) sec. 2*
Evidence—Misdirection in relation to reliability of police evidence.
Tonge and Gray were separately detained under sec. 2 of the Criminal Justice (Scotland) Act 1980. They were suspected of involvement in the rape of a young woman. When initially detained, Gray was given a full common law caution; Tonge was not. At the police station the procedure under sec. 2 of the 1980 Act was again carried out. Both were given a warning under sec. 2 (7) of the Act. Two officers subsequently entered Gray's cell and accused him of complicity in the crime. Gray replied, "I'd like to get it all cleared up," and thereupon made a long self-incriminating statement. No caution was administered to Gray at any stage between the accusation of complicity and the completion of the statement. Likewise, Tonge was also accused of complicity. Tonge replied, "Aye, wait a minute boys, you've got it all wrong," and proceeded without interruption to make a long self-incriminating explanation. No common law caution was administered to him at any stage.
Jack went voluntarily to the police office after he learned that police officers had been at his house looking for him. While there, he was
interviewed by the two police officers who had interviewed Gray. Jack was not detained under sec. 2 of the 1980 Act. He was accused of complicity in the crime of rape. Jack replied, "It wasnae my idea, But I was there right enough. I didn't even know her." He was then formally cautioned and charged and thereafter he made, according to the police evidence, a self-incriminating statement.At the trial on a charge, along with others, of rape, objections were taken to the admissibility of these statements. The trial judge repelled the objections. But for those statements, there would have been insufficient evidence to warrant convictions. The jury convicted Gray and Jack of rape and Tonge of attempted rape. Tonge and Gray appealed, contending that the trial judge erred in allowing their statements to be admitted in evidence in respect that they were unfairly obtained. Jack appealed, contending that the trial judge had misdirected the jury by failing to instruct them to consider whether he had received only a warning under sec. 2 (7) of the Act and by omitting to focus clearly the vital question of the reliability of the police evidence.
Held, allowing the appeals and quashing the convictions, (1) that the admissibility in evidence of anything said by a detainee falls to be determined by the common law and, where the common law and proper practice would require, in the interests of fairness and fair dealing, that a full common law caution be given, the omission to give it before questioning a suspect who has received no more than the limited warning prescribed by sec. 2 (7) of the Criminal Justice (Scotland) Act 1980 will, at the very least, on that account alone, place in peril the admissibility of anything said by the detainee.
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(2) That the accusations of complicity were clearly calculated to induce a response from Tonge and Gray and, since no caution was administered before each accusation was made, it was impossible to regard each statement made in response to it as spontaneous and voluntary; accordingly the statements were induced by unfair means.
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(3) That, upon the undisputed relevant evidence, this was one of those exceptional cases in which it could be said that no reasonable jury could have held that the statements of Tonge and Gray were voluntary and had not been induced by unfair or improper means.
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(4) That the charge of the trial judge in respect of Jack was liable to misdirect the jury because the jury ought to have been told to see what they made of the police officers' evidence and to consider very carefully what effect it might have in evaluating the reliability of the police evidence in relation to the warning or caution, the alleged statements and how they were to treat those alleged statements.
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(5) That the misdirection was a matter of real importance which was likely to have led to a miscarriage of justice.
Observations on the proper practice in relation to common law cautions and the efficacy of the warning prescribed in sec. 2 (7) of the 1980 Act; and in relation to the taking of voluntary statements from a suspect or an accused.
David Albert Tonge, Alan James Jack and George Alexander Gray were charged on an indictment alleging rape. After trial in the High Court, Tonge was by a majority found guilty of attempted rape (the trial judge having directed the jury that upon the evidence he could not be convicted of rape), and Gray and Jack were by majority verdicts convicted as libelled. The appellants appealed against conviction.
The facts and arguments are fully set forth in the opinion of the Lord Justice-General. The case was heard before the High Court of Justiciary on 14th and 20th May 1982.
At advising on 11th June 1982,—
LORD JUSTICE-GENERAL (Emslie).—The appellants went to trial in the High Court upon an indictment which charged them and a youth named Peter M'Lean, in the following terms—"that you did on 19th or 20th July 1981 in a field adjacent to Glen Moray Drive, New Elgin, Elgin, District of Moray, while acting with another person or persons to the Prosecutor unknown assault [the complainer] seize hold of her, place a hand over her mouth, pull her about, remove her jacket, pull her to the ground, remove her trousers and pants, hold her down, place a hand over her face and mouth, punch her on the face, handle her breasts, bite her neck, force her legs open, hold her legs apart, all to her injury and you did each get on top of her and you did rape her." At the close of the Crown case the learned Advocate-Depute withdrew the libel against M'Lean for against him there was no sufficient evidence in law for the jury's consideration. By majority verdicts the appellants Gray and Jack were convicted as libelled. In the case of the appellant Tonge, the trial judge having directed the jury that upon the evidence they were not entitled to convict him of rape, the verdict by a majority was that he was guilty of attempted rape.
In the course of the trial the Crown sought to lead evidence that each of the appellants had made to police officers what was alleged to be a voluntary statement and evidence as to the contents thereof. Objection was taken to the admissibility of each of the alleged statements upon the ground that it had been unfairly obtained. The trial judge repelled the objection in each case and allowed the statements to go to the jury, leaving it to the jury in light of directions given in his charge to decide, upon the whole evidence relating to the making of the alleged statements, whether or not they had been fairly obtained. The jury must be presumed to have answered that question in the affirmative, for without the alleged statement by each appellant there was insufficient evidence to warrant his conviction.
For the appellants Tonge and Gray their appeal against conviction is presented upon the ground that the trial judge erred in repelling the objections to the admissibility of their alleged voluntary statements. In light of the evidence before him as to the circumstances in which these alleged statements were made it was plain that they had been unfairly obtained, and the trial judge should have held them to be inadmissible on that account. Before I come to identify and examine the particular point argued in support of these submissions for Tonge and Gray it is, I think, desirable to describe briefly the picture presented by the remainder of the evidence. This I shall now do.
This was by no means a clear cut case and at the end of the trial there was a number of disturbing question-marks in relation to the evidence. The events with which it was concerned took place on a Sunday night when a new part of the Caberfeidh Hotel was opened and when a social gathering had taken place there to mark the occasion. The complainer was present and, according to evidence given, was drunk, and was trying to attach herself to a man—indeed to any man. Evidence was also given that her reputation in sexual matters was not high. When she left the hotel she left alone but, soon after, met the accused M'Lean, a youth of low intelligence. He, it seems, escorted her in the general direction of her home. A number of other boys who had been in the hotel also walked in the same direction and there was some evidence that a boy called M'Laughlan was talking of the complainer's reputation and thought that she might be willing to have intercourse. On the way there was a junction where there was a grassy area bounded by trees adjoining a field. The boys stopped there and talked amongst themselves. At some point they looked round for M'Laughlan and saw him and the complainer go off into the grassy area near the trees. They then saw M'Laughlan having intercourse with the complainer. According to evidence given by one of the boys named Hines about whom I shall have something further to say later, M'Laughlan then stood up and said "Who's next?" Ignoring for the moment the evidence of the complainer altogether, what happened thereafter appeared to be as follows.
Hines' story was that the appellant Tonge got down beside or on top of the complainer but did nothing, and there was some evidence that he did not care to do anything because of the girl's reputation. After he left, M'Lean, Jack, Gray and Hines remained. Again according to Hines, Gray and Hines himself got on top of the complainer in turn and it seems at least on his account that they certainly tried to have intercourse with her. Hines on his own admission, while he was engaged with the complainer, punched her on the face. Jack, Gray and Hines...
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