Wilson v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 18 June 2009 |
| Neutral Citation | [2009] HCJAC 58 |
| Docket Number | No 30 |
| Date | 18 June 2009 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Wheatley, Lady Paton, Lord Reed
Justiciary - Appeal - Reference by Scottish Criminal Cases Review Commission - Fresh evidence - Evidence as to reliability of confessions - Evidence of suggestibility of accused - Whether fresh evidence of such significance that verdict returned in ignorance of it a miscarriage of justice
The appellants were convicted on indictment in the High Court of Justiciary on a charge of attempted rape and murder. Both had made detailed voluntary confessions of guilt of the murder of the victim, which included knowledge of the offence and the crime scene. They were both in separate police stations when the confessions were rendered to police officers and both confessions were, subject to minor discrepancies, in substance the same in their terms. The Crown case at trial depended entirely on these statements. At the close of the Crown case the appellants moved to have the case dismissed on the ground that there was insufficient evidence in law to go to the jury. The trial judge repelled the no case to answer submissions. The appellants were subsequently convicted of murder. An appeal against conviction based on misdirections in law was refused in 1987 (Wilson v HM AdvocateSC1987 JC 50).
The Scottish Criminal Cases Review Commission referred the appellants' cases, on the basis of fresh evidence regarding the reliability of their independent confessions made to the police. A professor of forensic psychology (Gudjonsson) had in 2003, conducted psychological evaluations on the appellants and concluded that both had abnormally high levels of compliance, that their respective confessions to police had the features of coerced-compliant false confessions and were therefore unreliable. The appellant Wilson argued that his admissions to police officers had been obtained by means of unfair pressure, to which he had been vulnerable as a result of his psychological make up. The appellant Murray argued that had this expert opinion been led in evidence, and accepted, the jury would have been bound to acquit.
In response to the evidence submitted by the appellants about the reliability of their confessions, the Crown led evidence of two witnesses who commented on the methodology used in reaching those conclusions.
Held that: (1) the governing question in any appeal based on additional evidence, was whether the fact that it had not been heard at the trial represented a miscarriage of justice (para 73); (2) the court had been far from satisfied that the appellants' expert opinion would have had any material effect on the jury's verdict (para 75); (3) expert opinion on the vulnerability of each of the appellants had been justified and required to have been considered carefully (para 75); (4) it had not followed in this case that the undoubted vulnerability of the appellants at the time of their police interview had meant that their statements were not reliable (para 75); (5) the new evidence had not been of such significance in all the circumstances of the case, that had it been available to the jury they would have been bound to acquit (para 75); (6) all new evidence had to be set in the context of the trial (para 75); (7) there had been a significant limitation in this case to the value of the Gudjonsson Compliance Scales 1 and 2; the tests had depended for their completion on self reporting by the subject, to have any value they required to have been supported by extensive, significant and direct access to contemporary sources to confirm the results, it had been unhelpful and artificial to ask a subject, in the context of a criminal appeal to answer the test as he would have done more than 15 years earlier and there had been no scientific basis justifying such an exercise (para 76); (8) the conclusions reached had been based on the premise that the appellants' confessions had been unreliable but no attempt had been made to test objectively the appellants' veracity (para 77); (9) the issue of the appellants' vulnerability had been the basis of their defence, they had been rejected by the jury as incredible, a view of the evidence that had been echoed by the trial judge, but no attempts had been made to reinterview the prosecution witnesses (para 77); (10) the appellants' expert's conclusions had depended on important assumptions (para 78); (11) the court had been given no convincing explanation for the failure to acknowledge certain important parts of the evidence which did not fit with the expert's conclusions (para 79); (12) there had been no detailed or satisfactory examination or explanation by the appellants' expert or the Commission of the special knowledge content of the confessions (para 80); (13) it had not been enough for the appellants to have said, that because they had been vulnerable and vulnerable persons make unreliable confessions, then the present confessions had been unreliable (para 80); (14) accordingly, the court had not been satisfied that the new additional evidence (that of the appellants expert) had satisfied the relevant tests (para 81); (15) the court had not been satisfied that the original jury, even if it had heard that additional evidence would have been bound to acquit (para 81); (16) a verdict reached in ignorance of that additional evidence could not have been regarded as a miscarriage of justice (para 80); (17) the additional evidence, properly analysed and considered in the circumstances of the case, would not have been of such a kind and quality, that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial (para 81); (18) that the content and character of the confessions had been truly redolent of complicity in this crime, and that had been incompatible with the view that those confessions had been untruthful or in the event unreliable (para 81); (19) the trial judge's directions accurately had reflected the different positions adopted by the Crown and the defence at the trial (para 83); (20) no significant use had been made of any admission which had followed the caution and charge and no miscarriage of justice could therefore be identified (para 83); (21) in the event that a trial within a trial had taken place, the evidence of admissions would still have gone to the jury, a view that had been reflected in the opinion of the original appeal court (para 84); (22) on the facts of this case there had been no perceptible basis on which a verdict of culpable homicide could have been considered (para 85); and appeals against conviction refused.
Observed that: (1) in general, opinion evidence had not been admissible in Scottish criminal courts (para 58); (2) witnesses had under normal circumstances given evidence about matters within their direct knowledge (para 58); (3) the evidence of an expert witness had been an exception to this rule (para 58); (4) it had not been possible to provide an absolute direction as to what constituted legitimate subject-matter for expert opinion (para 58); (5) two general principles however gave some guidance (para 58); (6) first, the subject under discussion must have been necessary for the proper resolution of the dispute, and be such that a judge or a jury without instruction or advice in the particular area of knowledge or experience, would have been unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience (para 58); (7) secondly, the subject-matter in question must have been part of a recognised body of science or experience which had been suitably acknowledged as being useful and reliable and properly capable of reaching and justifying the opinions offered, and the witness must have demonstrated a sufficiently authoritative understanding of the theory and practice of the subject (para 58); (8) the nature and scope of expert evidence could not at any one point be exhaustively defined (para 58); (9) an expert witness was not in the position to provide the court with a statement of unqualified conclusions about the question of fact upon which his opinion bore (para 63); (10) it was of the utmost importance that any expert witness carefully described the source and assessed the worth of all material on which his opinion was based (para 63); (11) the role of an expert witness was to place his opinion before a court or a jury in order to allow the court or the jury to reach a proper conclusion on the matter (para 63).
Brian Wilson and Iain Murray were charged on an indictment at the instance of the Right Honourable Lord Cameron of Lochbroom, Her Majesty's Advocate, the libel of which set forth offences of gross indecency and murder. The appellants pled not guilty and the cause came to trial before Lord Robertson and a jury in the High Court at Glasgow on 23 September 1986. On 10 October 1986 the appellants were convicted of murder and sentenced to life in a young offenders' institution and detention for life under the direction of the Secretary of State respectively.
The appellants thereafter appealed against conviction to their Lordships in the High Court of Justiciary. On 20 March 1987 that appeal against conviction was refused (Wilson v HM AdvocateSC 1987 JC 50).
The appellants thereafter made an application to the Scottish Criminal Cases Review Commission. The Scottish Criminal Cases Review Commission referred this case to their Lordships in the High Court of Justiciary.
Cases referred to:
Davie v Magistrates of EdinburghSC 1953 SC 34; 1953 SLT 54
Dingley v Chief Constable, Strathyclyde PoliceSC 1998 SC 548; 1998 GWD 13-677
Ferguson v HM AdvocateUNK [2008] HCJAC 71; 2009 SLT 67; 2009 SCCR 78; 2009 SCL 250
Gilmour v HM AdvocateUNK [2007] HCJAC 48; 2007 SLT 893; 2007 SCCR 417
Kidd v HM AdvocateSCUNK 2000 JC 509; 2000 SLT 1068; 2000 SCCR 513
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