Scottish High Court of Justiciary Decisons

At advising on 13th July 1979, the opinion of the Court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—[His Lordship narrated the facts set out above, and continued]—In considering the submissions made in support of the various grounds of appeal we consider it appropriate to deal in the first place with the argument that the trial Judge misdirected the jury in the case of Boyne in that he excluded from their consideration the question whether the statements made by Boyne to the police had been unfairly obtained. No argument was advanced in the case of Brown that any unfairness was attached to the taking of statements from him, so the point did not arise in his case. The importance of this point in Boyne's case is that the Advocate-Depute frankly admitted that without these statements no convictions would be warranted against Boyne on charges 4, 6 and 10.

The passage in the Judge's charge to the jury which was the basis of this complaint was in these terms:

"There is accordingly, ladies and gentlemen, in this case against Boyne no evidence before you from which you could hold that these statements had been extracted unfairly in the legal sense from Boyne, and I so direct you."

We pause to observe that this passage was picked out of its context, and we shall come to the context in due course. This passage was interpreted by Mr Morison as meaning that the Judge was directing the jury as a matter of law that they were not entitled to consider the question of unfairness in the manner in which the statements were obtained or made in determining what evidential value, if any, should be attached to them. This, said Mr Morison, was a clear misdirection in law. He prayed in aid the final passage in the judgment of Lord Justice-Clerk Thomson in Chalmers v. H. M. Advocate 1954 J.C. 66 at p. 83 where his Lordship said:

"It is impossible to ask a jury to accept as an item of evidence a statement made by an accused while preventing it from considering the circumstances under which it was made… The jury's problem is to find the truth; in their search for the truth a statement made freely by the accused may be of immense significance, but the degree of that significance must depend for the jury on their view of its spontaneity."

We in no way differ from what the Lord Justice-Clerk there said, but we cannot accept the wide interpretation which Mr Morison put on it. He submitted that once the Judge had admitted the evidence about the taking of a statement it had to be left to the jury, under proper direction, in every case to decide on their view of the spontaneity of the statement whether the statement had been fairly obtained. In our opinion that passage should be regarded against the background of dispute as to the circumstances in which the statement was made or had been obtained. It should not be read as depriving the Judge of the power to direct the jury as a matter of law that there was no evidence on which they could find that the rules of fairness had been infringed. Mr Morison argued that it was not competent for a Judge to make this decision where there was evidence of unfairness. Where there is evidence on which a jury, properly directed, could hold that there was unfairness, this is so. Where, however, there is no such evidence, the Judge is entitled to direct the jury accordingly as a matter of law. That will turn on the circumstances of the particular case.

We now turn to consider the circumstances in which the Judge's words which are the subject of complaint were uttered. The Judge clearly was of the view that Mr Morison had represented to the jury that it was sufficient to establish unfairness that there was evidence to show that the statements made by Boyne resulted from questioning by the police and that this in itself rendered the statements inadmissible in evidence. Mr Morison's recollection was that this was not the submission which he made. We do not have the extended notes of what counsel said to the jury, but we are always prepared to take into consideration what responsible counsel who conducted the case at the trial recollects what was said. We accordingly deal with the matter on the basis that the Judge may have misunderstood what counsel's submission to the jury was. What the Judge did, however, was to give the jury the law on the subject of when questioning of a suspect (as Boyne then was) is permissible and when it is not, in conformity with a line of recent decisions, the latest of which is Hartley v. H.M. Advocate 1979 S.L.T. 26. What he said in this respect was this:

"It is now clearly decided that questioning by the police of a suspect is only illegitimate if it strays into the realm of cross-examination and interrogation."

He then went on to cite a passage from the opinion of Lord Avonside in Hartley, supra.—"Police officers may question a suspect so long as they do not stray into the field of interrogation. Secondly, and most importantly, dealing with cross-examination, cross-examination is just what it means. It consists in questioning an adverse witness in an effort to break down his evidence, to weaken or prejudice his evidence or to elicit statements damaging to him and aiding the case of the cross-examiner." The Judge then continued with his own words:

"Also similarly a voluntary statement may be objectionable if the accused is subjected to bullying, hectoring or third degree methods, or if evidence is extracted from him."

Having given these general directions in law, which were in no way criticised as being wrong in any respect, he went on to consider the facts of the instant case. He told the jury "in the case of Boyne in this case no objection was taken to any line of questioning by the police of Boyne, no evidence was led which showed that the police officers had strayed into the realm of cross-examination or interrogation or illegal methods. It would have been perfectly possible for the accused to give evidence on this matter, but he did not do so, and he did not say that there was anything unfair about the giving of these statements, or that anything unfair had been done." It was at that point that he said:

"There is accordingly in this case against Boyne no evidence before you from which you could hold that these statements had been extracted unfairly in the legal sense from Boyne, and I so direct you."

He followed this up immediately with the following direction:

"The Advocate-Depute was quite right in referring to these statements which in his case are simply part of the evidence in the case, and are to be treated by you as any other piece of evidence. You would of course be quite entitled to consider all the circumstances in which they were taken, his youth and the length of time and all that sort of thing, but these criticisms in the circumstances would go to the quality of the evidence in the statements and not to their competence."

The points taken by Mr Morison to support his claim of unfairness were founded not on any direct evidence but on inferences to be drawn from the youth of the appellant (he was 16 years old at the time), the length of the questioning and the hours at which the questioning took place. There was, however, no evidence, least of all from the appellant, that these factors had any effect on him in giving the statements or influenced him in any way. As we have already said, each case turns on its own special circumstances, and in the instant case we are of the opinion that, having regard to the factors alluded to by him above and the points taken by Mr Morison and our observations thereon, the Judge was entitled to hold that there was no evidence on which a reasonable jury could find that the statements had been extracted unfairly from Boyne in the legal sense. Having so correctly decided, the Judge directed the jury accordingly but then left it to the jury to consider what weight should be given to these statements as evidence, since they were before the jury without objection. Bead as a, whole, his direction to the jury was simply this: There was no evidence sufficient in law to entitle you to hold that the statements were unfairly obtained so that as a matter of competence you take them out of the case altogether; but you have the evidence of how they came to be given and you have to decide in the light of all the factors, including the points made by Mr Morison, what evidential weight you give to these statements. In our view there was nothing objectionable in that. We are accordingly of the opinion that these statements were properly placed before the jury for their consideration of the respective charges against Boyne.

[The Court then dealt with a matter with which this report is not concerned. The Court held that there was nothing in the appellant's statements to constitute an acknowledgement that he was art and part in the murder (as distinct from an assault and robbery). That being so, there was not sufficient evidence to warrant the conviction of murder.]