Confessions and Statements against interest Flashcards
Miln v Cullen 1967 JC 21
No need to give an individual a caution when they are not suspected of committing any crime
In this case a man was identified as being the driver of a car involved in a collision.
He was asked if he was the driver of the car, to which he replied he was.
He was subsequently arrested for drunk driving.
Procurator fiscal asked for the case to go to the high court for guidance, over whether the admittance to being the driver before he was cautioned was admissible.
Court applied the general test of fairness – whether the confession has been obtained fairly.
Held, because the case had not gone further than the investigation stage (no interrogation ect.) there was no unfairness to the person.
Tonge v HM Advocate 1982 JC 130
(Where individual has become a suspect a caution is required BUT overarching test is one of fairness so failure to caution does not necessarily result in the confession being inadmissible)
There were two accused who were detained for being suspected of being involved in the rape of a young woman.
One of the accused was given full common law caution, but Tonge was not given a caution.
They were both charged with complicity = to do with being involved in the commission of a crime.
They both made long self-incriminating statements.
At this point Tonge still had not been cautioned.
There was also a third suspect, Jack, who went voluntarily when they heard they were looking for him
He was not detained but was interviewed and was also accused of being involved.
He made a partialy incriminating statements, was then charged and cautioned and made further incriminating statements.
At the trial the defence objected to the incriminating statements and convicted Jack and Gray of rape and Tonge for attempted rape.
Tonge and Gray appealed and said the court was wrong to allow their statements as they had been unlawfully obtained.
Court said that the admissibility of evidence given by a detained person is to be decided by common law, the test being that of fairness.
In the interests of fairness the police should have given a caution and the failure to do this would jeopardize the admissibility of evidence obtained.
Here the court held there had been a miscarriage of justice and the appeal was allowed.
Cadder v HM Advocate 2010 SC (UKSC) 13
factors which may render a confession unfairly obtained - access to legal advice
Cadder was detained under suspicion of a serious assault/
He was cautioned and made no comment.
He was taken to police office and cautioned again. He was told he could have intimation of his detention sent of his lawyer but he refused.
He was then interviewed under caution for about half an hour where he made incriminating statements and was charged.
The court decided here in light of the recent decision of Salduz, the other guarantees/safeguards built into the system were not sufficient to not require access to legal advice.
As a result the right of a suspect to access legal advice is enshrined in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.
Harley v HM Advocate 1996 SLT 1075
confession unfairly obtained as it was a result of threats by the police
R further argued that the sheriff erred in allowing a taped interview to be heard by the jury, R claiming that the incriminating answers given by him to police were as a result of inducements and pressure since the police had made it plain to R that if he did not confess to the offence they would go to the home of the woman with whom R was associating and through whom R had allegedly learnt about the house which was broken into, saying that her husband was at home and probably did not know about the relationship
Held, There had been a flagrant breach of the rules of fairness, as no reasonable jury could hold that R’s statements were voluntary and had not been extracted by unfair and improper means, the police having offered an inducement. That being so, the sheriff ought to have excluded the evidence from the jury’s consideration
Codona v HM Advocate 1996 SLT 1100
Suspect was 14 - treated her very harshly - repetitive questioning / she broke down in tears
Held, allowing the appeal and quashing the conviction, that by the time C made the admission, the questioning had become so unfair that her answers were inadmissible. the questioning was designed to persuade C to change her answers and to admit what was being put to her. The statements C made at this stage in the interview were therefore obtained under pressure, not voluntarily and therefore were inadmissible
Jamieson v Annan 1988 JC 62
overhearing or intercepting statements
Two accused were charged with theft from a hotel safe. Evidence was led at the trial that police officers overheard a shouted conversation of an incriminating nature between the accused after they had been cautioned and charged with the theft and while they were in separate cells in the police station. Objection was taken to the evidence but repelled. The accused were convicted and appealed on the ground inter alia that the evidence of the conversation was wrongly admitted.
Held, that as it was plain that what the accused said to one another was entirely voluntary and spontaneous, there being no question of any inducement, trap or unfairness, the evidence of the conversation was admissible; and appeal refused.
HM Advocate v Higgins 2006 SLT 946
overhearing or intercepting statements
Where the police deliberately engineered the placement of suspects in the police station so as to facilitate eavesdropping.
Held, sustaining the objection, that the methods used by the police could only be described as a trap. H and S had been deliberately placed in adjacent cells on an unoccupied floor with officers posted in the corridor outside to hear and record what they said and H and S would not have spoken as they had if they had known the officers were listening. In the absence of any explanation for the failure by the police to observe the requirements of the Regulation of Investigatory Powers (Scotland) Act 2000, the unauthorised covert surveillance had to be regarded as a serious irregularity that could not be condoned and which pointed strongly towards the transgression of the principle of fairness. The evidence thus had to be excluded, Jamieson v Annan 1988 J.C. 62 applied. Since the intrusive surveillance was unlawful it breached the rights of H and S under Art.8; however a breach of Art.8 did not of itself give rise to a breach of Art.6 and the applicable test in such cases was that of fairness
Brown v Stott 2001 SC (PC) 43
required to answer by virtue of statute
The procurator fiscal appealed against the decision of the High Court of Justiciary (2000 J.C. 328) to grant a declarator that an admission by B obtained compulsorily under the Road Traffic Act 1988 s.172 that she had been the driver of a car when charged with drink driving was a breach of her right to a fair trial under the European Convention on Human Rights 1950 Art.6 and could not be relied on in court.
Held, allowing the appeal, that an admission obtained under s.172 did not breach Art.6 and could be relied on at trial, since the right against self incrimination was not an absolute right and had to be balanced against the clear public interest in the enforcement of road traffic legislation in order to address the high incidence of death and injury on the roads caused by the misuse of motor vehicles. The right to a fair trial could not be compromised, but the constituent rights within that overall right could be limited to the extent that it was necessary to fulfil a clear and proper public objective.
