Archive for shirleymckie.myfastforum.org To allow readers to post comments on current issues related to the Shirley McKie case
 


       shirleymckie.myfastforum.org Forum Index -> Test Forum 1
Big Wullie

UK Pays Out In Cadder Case

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"appno":["17749/12"],"itemid":["001-146825"]}

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Summers"]}


FOURTH SECTION

DECISION

Application no. 17749/12
Fraser Brian SUMMERS
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 4 September 2014 as a Committee composed of:

             George Nicolaou, President,
             Nona Tsotsoria,
             Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 20 February 2012,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1.  The applicant, Mr Fraser Brian Summers, is a British national, who was born in 1987 and lives in Alloa. He was represented before the Court by Ms R. Cameron of John Pryde & Co Solicitors, a lawyer practising in Edinburgh.

2.  The United Kingdom Government (“the Government”) were represented by their Agent, Ms I. Rao of the Foreign & Commonwealth Office.

3.  The applicant complained under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that his trial was unfair because he was denied access to a lawyer during the initial police interviews and his statements to the police were subsequently relied on by the prosecution at his trial. He further complained under Article 6 about the length of the criminal proceedings, and under Article 13 about the lack of an effective remedy in respect of his Article 6 complaints.

THE LAW

4.  On 3 March 2014 the Court received the following declaration signed by the applicant’s representative:

“I, Rosemary Cameron of John Pryde & Co. Solicitors, note that the Government of the United Kingdom are prepared to pay Fraser Brian Summers, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 4,500 euros to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

... ... ...

Having consulted my client, I would inform you that they accept the proposal and waive any further claims against the United Kingdom in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

5.  On 6 May 2014 the Court received the following declaration signed by the Government:

“I, Derek Walton, Agent for the Government of the United Kingdom, declare that the Government of the United Kingdom offer to pay to Fraser Brian Summers, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 4,500 euros to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

... ... ...

The payment will constitute the final resolution of the case.”


6.  The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

7.  In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.

             Fatoş Aracı              George Nicolaou
             Deputy Registrar              President

__________________________________________________________

FOURTH SECTION

Application no. 17749/12
Fraser Brian SUMMERS
against the United Kingdom
lodged on 20 February 2012

STATEMENT OF FACTS

The applicant, Mr Fraser Brian Summers, is a British national who was born in 1987 and is currently detained in HMP Glenochil in Scotland. He is represented before the Court by Ms R. Cameron of John Pryde & Co. Solicitors, a lawyer practising in Edinburgh.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 May 2009 the applicant had voluntarily attended at a police station after images taken by CCTV camera in Glasgow city centre were reproduced in newspapers under the heading “Is this the Glasgow city centre rapist?” After he had been at the police station some time, he gave a statement to the investigating officers. He was not cautioned before doing so. He was then interviewed by police about two incidents which had occurred eighteen months apart. In each incident a women working as a prostitute claimed to have been raped and subjected to a violent sexual assault. The applicant denied having any sort of contact with the second complainant; however, after initial denials he admitted having engaged in sexual activity with the first complainant, but claimed that it was consensual. The applicant had not been advised of his right to advice from a solicitor at this stage.

The applicant was charged with rape and sexual assault in respect of the two incidents (charges one and four). He was also charged with assaulting two women at an incident in a nightclub in Glasgow (charges two and three). At a preliminary hearing on 20 October 2009 the applicant altered his position in respect of the second complainant when he lodged a Special Defence of consent in relation to both charges one and four.

At trial, the women whose complaints formed the basis of charges one and four testified that they had agreed to provide unspecified sexual services to the applicant. However, they claimed that they were subsequently subjected to sudden violent attacks which included oral and anal penetration and rape. The applicant also gave evidence. He admitted having met both complainants on the dates specified and engaging them as prostitutes. According to him all sexual activity was consensual and problems only arose when he caught each of the complainants attempting to pick his pockets during an act of oral sex. He accepted that he had then assaulted both women. Evidence was also given by witnesses who had contact with the two women immediately after the incidents and who confirmed that they were extremely distressed, showing visible signs of injury and were claiming to have been raped. Medical evidence was also adduced of the injuries the women had suffered and DNA evidence linked the applicant to each of them.

On 20 December 2009 the applicant was convicted of all four charges. In respect of charges one and four, he was sentenced to nine years in prison. He was also sentenced to six months in prison in respect of the second charge and three months in respect of the third. All three sentences were to run concurrently.

The applicant sought leave to appeal out of time against his conviction in relation to all four charges on the ground that evidence of his police interview on 27 May 2009 was led at trial without his having had the opportunity to consult with a solicitor beforehand or have a solicitor present during the interview.

On 23 April 2010 leave was refused by a single judge on the ground that the application did not disclose any possible ground of appeal against conviction and, as such, it would not be appropriate to extend the statutory time limit. However, on 19 May 2010 the High Court of Justiciary adjourned the application to a date to be fixed as soon as possible after the release of the decision in Cadder v. HM Advocate [2010] UKSC 43, which was shortly to be heard by the Supreme Court. Following the decision in Cadder, the application for leave to appeal was granted on 16 November 2010. On 10 January 2011 the applicant was advised that a single judge Procedural Hearing would be fixed in due course.

On 10 March 2011 the applicant applied to the High Court for interim liberation. That application was refused by a single judge.

At a Procedural Hearing on 11 March 2011, counsel for the applicant sought an adjournment as certain transcripts had only been received the day before. The court therefore directed that a further Procedural Hearing be held on 6 May 2011. At this further hearing the Crown was ordered to lodge a case and argument within twenty-one days.

At a further hearing on 22 June 2011 the court directed that the full hearing be delayed until after the decision of the Supreme Court in the cases of Ambrose v. Harris, M v. HM Advocate and HM Advocate v. G [2011] UKSC 43.

On 22 July 2011 the applicant again applied unsuccessfully for interim liberation.

The applicant's appeal was heard on 30 March 2012. Following the judgments of the Supreme Court in the cases of Ambrose v. Harris, M v. HM Advocate and HM Advocate v. G., the Crown conceded that the evidence relating to the statement and the interviews should not have been admitted but contended that, absent the evidence, there was no real possibility of the jury arriving at a different verdict. The applicant contested this assertion, submitting that had the police interview evidence been excluded, the inconsistencies between what he said then and what he said at trial would not have been an issue.

On 4 April 2012 the Appeal Court refused the appeal, finding that there was no real possibility a jury would have reached a different verdict had the evidence relating to the statement and interviews not been admitted.

B.  Relevant domestic law and practice

1.  HM Advocate v. McLean [2009] HCJAC 97

At the time of the above judgment (and the time of the present applicant's trial), sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor, but did not have the automatic right of access to a solicitor either prior to or during a police interview.

Sections 14 and 15 of the 1995 Act gave legislative effect to the recommendations of the Thomson Committee on criminal procedure in Scotland. The Committee recommended the introduction of a limited or temporary form of arrest, arrest on suspicion, which should be given the separate name of “detention” (as distinct from arrest after a suspect is charged). Detention should not last longer than was necessary in the interests of justice, should be succeeded as soon as possible by either release or arrest, and should not exceed a fixed period of time at the end of which the detained person should either be released or arrested and charged. The Committee considered that while an arrestee should be entitled to an interview with a solicitor, it should be a matter of police discretion whether to allow a detainee an interview with his solicitor. In making this recommendation, the Committee noted that the purpose of interrogation of a suspect/detainee was to obtain from him such information as he might possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.

The compatibility of sections 14 and 15 of the 1995 Act with this Court's judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 was considered by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) in HM Advocate v. McLean.

The Appeal Court considered that Salduz was open to interpretation. It could, on the one hand, be read as requiring that every jurisdiction have in place a system where access to a lawyer was ordinarily provided as from the first interrogation of a person, whatever safeguards there may otherwise be for a fair trial. Alternatively, the Court could have required that access to legal advice be seen against the guarantees which were otherwise in place to secure a fair trial.

The Appeal Court favoured the latter interpretation. Proceeding on that basis, it was satisfied that the guarantees available under the Scottish system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution. The Appeal Court stated:

“[27]  In the first place it is important to notice that Scots law is particularly jealous to protect a person who has, in the domestic sense, been charged with a crime, that is a person who, having been cautioned that he need not respond, has had read to him by the police the charge or charges which they propose should be preferred against him. Such a person, if arrested, has the right to have a solicitor informed of what has happened and to a subsequent interview with him before his appearance in court. He may not, after caution and charge, be further questioned by the police. He may, if he chooses, make a voluntary statement but that is taken by officers not involved in the inquiry. Problems occasioned by these protections persuaded the Thomson Committee to recommend, and Parliament to endorse, a form of limited or temporary apprehension on suspicion - to which they gave the separate name of 'detention'. A number of safeguards apply to persons in detention. Before being questioned by the police the detainee must be cautioned that he need not answer any questions put - other than certain formal particulars (section 14(10) [of the 1995 Act]) - but that, if he does answer, his answers will be recorded and may be used in evidence. In all serious cases the interview is tape recorded - and in some cases, as in the present case, video recorded - with the tape or tapes sealed at the conclusion of the interview. While the police may question the detainee, and may do so persistently and robustly, they are not entitled to coerce him or otherwise to treat him unfairly. If they do so, that will render any incriminating answers which he gives inadmissible in evidence at his subsequent trial (Lord Advocate's Reference (No.1 of 1983) 1984 JC 52). Challenges to admissibility on such grounds may be made either in advance of the trial or in its course. The accused is entitled to give evidence as to the circumstances of the questioning during detention without being required to answer any questions as to the substance of the charge or charges; thus his right to silence at his trial is protected. The onus of proving that any admission made by the accused in the course of detention was fairly elicited is on the prosecution (Thompson v Crowe 2000 JC 173). The trial judge must forthwith rule on the challenge to admissibility by either excluding or admitting the answers in evidence. (It is noted that in Salduz the Izmir State Security Court did not 'take a stance' on the admissibility of the applicant's statements - para 57). Even where the judge admits the answers, the jury in solemn cases is entitled to take into account the circumstances in which any incriminating answers were given and, if they think fit, to give no or little weight to such answers. As explained in the caution, a suspect is entitled to decline to answer any of the questions (other than the formal questions) put by the police. That right when exercised is respected. The jury is expressly directed at the trial that it may not draw any inference adverse to the accused from any declinature to answer police questions. Even if the accused makes an admission during detention which is held to have been freely and voluntarily given in fair circumstances, he cannot be convicted on the basis of that admission alone. Scots law requires that there be corroboration by independent evidence (Morton v. HM Advocate 1938 JC 50; Sinclair v. Clark 1962 JC 57). A person may not be detained for more than six hours; it may be less (section 14(2) [of the 1995 Act]) - as it was in this case. He must be informed immediately upon the termination of his detention that his detention has been terminated (section 14(2)). He may not be further detained on the same grounds or on any ground arising out of the same circumstances (section 14(3)). Although a detained person has no right to have access to a lawyer before being questioned, he is entitled to have the fact of his detention and of the place where he is detained intimated without unreasonable delay to a solicitor and to one other person reasonably named by him (section 15(1)). Additionally, the police may, if they think fit, allow a lawyer or other person to be present during the detention. This discretion is likely to be exercised where the detainee is perceived to be a vulnerable person.”

The Appeal Court added that, if it was wrong in its interpretation of Salduz, it had to consider the effect of that assumption. Ordinarily, as a result of the obligation to take account of Strasbourg jurisprudence under the Human Rights Act 1998, United Kingdom courts should not without good reason depart from the principles laid down in a carefully considered judgment of the European Court sitting as a Grand Chamber. However, there was no evidence that, in Salduz, the implications for the Scottish system had been “carefully considered” by the Grand Chamber. In those circumstances the Appeal Court was of opinion that, while the judgment in Salduz commanded great respect, it was not obliged to apply it directly in Scotland. Thus, even if Salduz amounted to the expounding of a principle that Article 6 required that access to a lawyer should be provided as from the first interrogation of a suspect by the police, the Appeal Court was satisfied that that principle could not and should not be applied without qualification in Scotland. In particular, if other safeguards to secure a fair trial of the kind which it had described were in place, there was, notwithstanding that a lawyer is not so provided, no violation of Article 6.

2.  Cadder v. HM Advocate [2010] UKSC 43

Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court.

On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder's case should be remitted to the Appeal Court for further consideration; and (iii) its ruling should not apply retroactively.

On the first issue, Lord Hope found that the Appeal Court had erred in its interpretation of Salduz. The Grand Chamber's judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it, which was what had occurred under the 1995 Act. As to whether Salduz should be followed, Lord Hope noted that the judgment had been given by a unanimous Grand Chamber, it had been repeatedly followed in subsequent cases and was now firmly established in the jurisprudence of this Court. Lord Hope also observed that the majority of those Contracting States which prior to Salduz did not afford a right of legal representation at interview (Belgium, France, the Netherlands and Ireland) had recognised that their legal systems were, in that respect, inadequate (see the decision of the Supreme Court of the Netherlands LJN Bh3079, 30 June 2009; decision no. 2010-14/22 QPC, 30 July 2010 of the Conseil Constitutionnel; and the Court of Cassation's judgments no. 5699, 5700 and 5701, 19 October 2010). If Scotland were not to follow the example of others it would be alone in not doing so, and would find no support in England and Wales or Northern Ireland, both of which jurisdictions allowed the right of access to a lawyer.

For Lord Hope there was also no room for finding that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial.

Lord Rodger, concurring in judgment, stated that the many other safeguards which existed in Scots law for accused persons, and which the Appeal Court had relied upon, were “beside the point”. This Court's reasoning in Salduz was based on the implied right of an accused person not to incriminate himself. This being so, the only safeguards in Scots law which could be relevant would be those which were designed to protect that right. The safeguards relied on by the Appeal Court, though admirable and going further than some other systems, could not, and did not, protect that right. Instead, it was clear from the recommendations of the Thomson Committee that the purpose of sections 14 and 15 of the 1995 Act was intended to give the police and prosecution an enhanced possibility of obtained incriminating admissions from the suspect which could then be deployed in evidence at his trial. The procedure provided for in those sections was, therefore, the very converse of what the Grand Chamber held to be required in Salduz. For this reason, in Lord Rodger's view, there was “not the remotest chance” that this Court would find that, because of the other protections Scots law provided for accused persons, the Scottish system was compatible with Articles 6 §§ 1 and 3(c).

On the second issue, both Lord Hope and Lord Rodger declined simply to quash Cadder's conviction. Lord Hope found that such a course 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 the 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 (per Lord Hope at paragraph 64).

On the third issue, the effect of the Supreme Court's ruling, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re‑opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.

3.  Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010

Immediately after the Cadder ruling, the above Act (“the 2010 Act) was passed by the Scottish Parliament. It amends the Criminal Procedure (Scotland) Act 1995 to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor's professional assistance is required by the suspect. It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning. Consultation includes, for example, consultation by means of telephone. The 2010 Act also provides that a suspect must be informed of these rights.

The Scottish Criminal Cases Review Commission is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred. The 2010 Act amends the provisions of the 1995 Act which give the Commission the power to refer cases to the Appeal Court. The 2010 Act directs the Commission, in determining whether or not it is in the interests of justice that a reference should be made, to have regard to the need for finality and certainty in the determination of criminal proceedings (section 194C(2)) of the 1995 Act as inserted by the 2010 Act). The 2010 Act also gives the Appeal Court the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed (section 194DA(1)). The Act provides that, in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the Appeal Court must have regard to the need for finality and certainty in the determination of criminal proceedings (section 194DA(2)).

4.  “Post-Cadder” case-law

The Appeal Court considered the proper approach to sections 194DA(1) and (2) in two references made by the Commission in M [R.M.M.] v. HM Advocate [2012] HCJAC 121. Each of the two references concerned cases of sexual offences where the prosecution had at trial relied on statements made by the accused in police interrogations when they had not had access to solicitors before questioning. In allowing the references to proceed the Appeal Court stated:

“An independent body specifically entrusted with considering cases of possible miscarriages of justice has decided that it is in the interests of justice that it should make these references (1995 Act, s 194C(1)). In making that decision the Commission has considered the interests of finality and certainty (s 194C(2)). Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission (s 194DA(1), (2)), it cannot be right for us simply to duplicate the Commission's function and give effect to our own view. In light of the impressive record of the Commission, it is unlikely that we will have cause to differ from its judgment on this point. I think that we are entitled to assume, unless the contrary is apparent, that the Commission has considered the criteria set out in section 194C and has duly made its independent and informed judgment on them. In my view, we should reject a reference only where the Commission has demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse.”

When R.M.M.'s case later came before the Appeal Court for consideration of whether the conviction should be quashed (R.M.M. v. HM Advocate [2012] HCJAC 157), it was accepted by the Crown that the leading of the evidence of the interviews conducted by the police was in breach of Article 6 and that, on that account, the evidence was inadmissible. The issue was whether, without the evidence, there would have been insufficient evidence for a conviction or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they had the interview evidence before them (see Lord Hope's observations in Cadder, above).

The Appeal Court went on to observe that, in a case such as R.M.M.'s, the appropriate starting point was an examination of the role which the evidence of the questioning of the accused played in the prosecution case, and a useful starting point in that examination might well be the extent to which that evidence was invoked in the prosecutor's address to the jury at the conclusion of the trial. Having examined the transcript of that address, the court concluded that the police interview were clearly presented to the jury as being of major importance to the Crown case. The centrality and importance of those interviews led the court to conclude that there was a realistic possibility that, had the interviews not been before the jury, the jury might have returned a different verdict. For this reason, the Appeal Court quashed the conviction.

In Mark Chamberlain-Davidson, the Commission referred a conviction for assault with intent to rape. However, it did so on grounds other than Cadder, finding that, while the “Cadder principle” had been breached (and, in the absence of the appellant's police interviews, an acquittal would have been inevitable), it was not in the interests of justice to refer the case to the Appeal Court. It reasoned that the appellant had served his prison sentence of eighteen months and, at trial, had relied on the police interviews as part of his defence.

Applying R.M.M., the Appeal Court accepted the reference ([2012] HCJAC 120) and, notwithstanding the view of the Commission, then gave the appellant leave to lodge an additional ground of appeal based on Cadder ([2012] HCJAC 122). Having heard submissions, it then quashed the conviction finding that, without the interviews, there was insufficient evidence for conviction ([2013] HCJAC 54).

COMPLAINTS

The applicant complains under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, that his trial was unfair because he was denied access to a lawyer during the initial police interviews and his statements to the police were subsequently relied on by the prosecution at trial.

QUESTION TO THE PARTIES

Has there been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicants while they were in police custody and the reliance by the prosecution on the evidence obtained during their police interviews (Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Cadder v. HM Advocate [2010] UKSC 43)?
Big Wullie

Of course Fraser Brian Summers had an appeal tossed out by our Scottish Courts.

http://www.scotcourts.gov.uk/opinions/2012HCJAC%2043.html


APPEAL COURT, HIGH COURT OF JUSTICIARY




Lord Clarke

Lord Bonomy

Lord Osborne





















[2012] HCJAC 43

Appeal No: XC152/10



OPINION OF THE COURT



delivered by LORD BONOMY



In



NOTE OF APPEAL AGAINST CONVICTION



by



FRASER BRIAN SUMMERS

Appellant;



against



HER MAJESTY'S ADVOCATE

Respondent:



_______






Appellant: Shead, M McKenzie; John Pryde & Co. SSC

Respondent: Cherry QC, AD; Crown Agent



30 March 2012



Background



[1] The appellant was convicted on 23 December 2009 of four charges in the following terms:

"(001) On 17 November 2007 at the ground under construction to the west of the Clyde Port car park, Broomielaw, Glasgow you FRASER BRIAN SUMMERS did assault N, c/o Strathclyde Police, City Centre Police Office, Glasgow and did strike her on the head with an unknown implement, slap her repeatedly on the head and body, force her to the ground, cover her mouth with your hand, drag her by the hair, remove her clothing, remove your clothing, lie on top of her, touch her on the body, attempt to insert your private member into her hinder parts, throw her to the ground, insert your fingers into her hinder parts, repeatedly call her abusive names and demand that she repeat said names, prevent her escaping, throw her on to a pile of brick and stones, repeatedly force gravel into her mouth, insert your private member into her hinder parts, demand that she perform oral sex on you, force your private member into her mouth causing her to choke, and you did repeatedly rape her, all to her injury;

(002) On 22 November 2008 at the Tunnel, 84 Mitchell Street, Glasgow you FRASER BRIAN SUMMERS did assault A, c/o Strathclyde Police, City Centre Police Office, Glasgow, repeatedly punch her on the face, to her injury;

(003) On 22 November 2008 at the Tunnel, 84 Mitchell Street, Glasgow you FRASER BRIAN SUMMERS did assault S, c/o Strathclyde Police, City Centre Police Office, Glasgow and did punch her on the face;

and

(004) On 18 April 2009 at waste ground at Carrick Street, Glasgow near the Broomielaw you FRASER BRIAN SUMMERS did assault M, c/o Strathclyde Police, City Centre Police Office, Glasgow and did seize hold of her, place your arm around her throat, throw her to the ground, place your hand over her mouth, handle her breasts and private parts, pin her to the ground, remove your clothing, force your private member into her mouth thus causing her to choke, repeatedly call her abusive names and demand that she repeat said names, force her to kneel on the ground, insert your private member into her hinder parts, force her to lie on the ground, insert your fingers into her private parts and rape her and thereafter you did ejaculate onto her face, all to her injury."

Charges 2 and 3 arose out of events which occurred on the one occasion. Conviction on these charges is not the subject of challenge. The appeal is confined to the convictions on charges 1 and 4, both charges of assault and rape, which occurred within 18 months of each other in the same general locality, and in the circumstances of which there are many similarities.

[2] The appellant first came to the attention of the police as a suspect in relation to charges 1 and 4 when he attended voluntarily at a police office on 27 May 2009 following the publication of CCTV camera images taken on 18 April 2009, the date of charge 4, in two newspapers, in one of which there was an associated headline asking "Is this the Glasgow city centre rapist?". The appellant attended the police office to explain that, although he resembled the person in the image, he was not the person shown. After he had been at the police office for some time, he gave a statement to investigating officers which became Crown production 9. He was not cautioned before doing so. Thereafter he was interviewed in connection with the allegation in charge 4. About 12 hours later he was interviewed in connection with the allegation in charge 1. Not surprisingly, having regard to the date of these events, the appellant was not advised of the right to advice from a solicitor at any stage in this process.

[3] At the trial the Advocate depute and senior counsel for the appellant agreed that the evidence relating to the statement and the first interview should be presented as follows:

The evidence of the terms of the voluntary statement Crown production 9 would be adduced by way of summarised leading questions to the police officer who took the voluntary statement as follows:

(a)    The appellant voluntarily attended at the police office in connection with the newspaper coverage of the incident on 18 April 2009 and the photograph on the front page;

(b)   He denied being the person but agreed said image looked similar to him;

(c)    He denied any involvement or knowledge of the incident concerned and repeated those denials in the first police interview.

[4] That course was followed at the trial. In addition, again by agreement between counsel, only the contents of pages 44-58 of an edited version of the transcript of the second interview were placed before the jury. In that extract, after initial denials, the appellant admitted having engaged in sexual activity with the complainer in charge 1, but claimed that it was consensual. At a preliminary hearing on 20 October 2009, about two months before the trial, a special defence of consent was lodged relating to both charge 1 and charge 4. At his trial the appellant gave evidence that sexual activity in both instances occurred with the consent of the complainer.



Submissions
[5] The appellant challenges his convictions on charges 1 and 4 on the ground that the terms of the statement and the interviews were inadmissible and that their admission into evidence rendered his trial unfair, founding on the terms of the judgment of the Supreme Court in Cadder v HM Advocate [2010] UKSC 43, 2011 UKSC 13, 2010 SCCR 951, 2010 SLT 1125. The hearing of the appeal was delayed pending the outcome of references at the instance of the Lord Advocate to the Supreme Court in Ambrose v Harris, M v HM Advocate and HM Advocate v G [2011] UKSC 43, 2011 SCCR 651. Following the judgments of the Supreme Court in these cases, the Crown have conceded that the evidence relating to the statement and the interviews should not have been admitted, but contend that, absent that evidence, there was no real possibility of the jury arriving at a different verdict. The sole remaining question is, therefore, whether applying that test, derived from McInnes v HM Advocate [2010] UKSC 7, 2010 SCCR 286, what occurred amounts to a miscarriage of justice.

[6] Mr Shead, counsel for the appellant, submitted that the result of the admission of the statement and the appellant's responses at interview was materially to strengthen the Crown case and to provide the Crown with evidence by which the appellant's own testimony could be materially undermined, thus adding further illegitimate strength to the Crown case. The very fact that the contents of the statement and the interviews were inconsistent with the appellant's account in evidence had led to the appellant's counsel deciding, in the exercise of her judgment in the course of the trial, to explore with the appellant in his evidence in chief the circumstances in which he had not been honest with the police in his accounts in the statement and interviews. She had also judged it appropriate to make reference in her address to the jury to the inconsistency between what he had said then and his evidence in court. Although the Advocate depute had made no reference to the statement or interviews in his address to the jury, he had opened his cross‑examination of the appellant by exploring the circumstances in which he would lie by reference to the differences between his accounts during the investigation and his evidence in court. At two other points in cross-examination the Advocate depute had returned to the same theme. In Mr Shead's submission the end result was that the normal trial balance had been distorted. The reality of any trial in which the accused gave evidence was that his evidence took on particular significance since, only if the jury could say that they rejected that evidence or that it did not leave them in any reasonable doubt about the guilt of the accused, could they go on to consider convicting him. Had the statement and interviews been excluded, the inconsistencies between what the appellant had said then and what he said at the trial would not have had to be addressed by the appellant's counsel and would not have provided the basis for cross-examination by the Advocate depute. In relation to both charges the appellant acknowledged that he had assaulted the complainer. The context in which the McInnes test fell to be applied was one in which the choice for the jury was confined to the narrow question whether the appellant should be convicted of assault and rape or simply convicted of non‑sexual assault. It could not therefore be said that, had the statement and interviews not featured in the trial, there was no real possibility of a different verdict.

[7] In response the Advocate depute maintained that there was no real possibility of a different verdict because the combination of the evidence of the complainers of similar attacks, independently supported in respect of each charge by the eye-witness evidence of passers by, forensic science evidence and medical evidence, amounted to an overwhelming case against the appellant. In relation to each complainer there was evidence of acute distress, a de recenti claim of having been raped, and DNA samples, injuries and damage, all indicative of a sexual assault of the nature described by each complainer. The circumstances also warranted the application by the jury of the Moorov doctrine of mutual corroboration (Moorov v HM Advocate 1930 JC 6Cool



Discussion.

[8] The Crown were able to present a case in which each charge was independently corroborated and both could also be seen to form part of a course of criminal conduct. There was no connection between the complainers, and yet they gave accounts which included a number of distinctive similarities. In his report to this court the trial judge outlined the circumstances of the two cases as follows:

"Both N and M were drug users who occasionally worked as prostitutes in what was described in evidence as Glasgow city centre's Red Light District. This is the area very approximately bounded by Central Station to the east, Bothwell Street to the north, Douglas Street to the west and the Broomielaw to the south. According to their evidence, both N and M agreed, on the respective occasions libelled, to provide unspecified sexual services before taking a client who at trial was accepted was the appellant to waste ground. There they were subjected to sudden violent attacks which included oral and anal penetration and rape. There was DNA evidence to link the appellant with each of the complainers. The appellant gave evidence. He admitted having met the complainers on the dates specified and engaging them as prostitutes. However, according to him all sexual activity was consensual and difficulty only arose when he caught each of the complainers attempting to pick his pocket during an act of oral sex. He accepted that he had assaulted N by slapping her and punching her repeatedly, dragging her by the hair and throwing her to the ground. He accepted that he had called her abusive names. He accepted, as N had explained in her evidence, that she had run away from him. As far as M was concerned, he accepted that he had pushed her to the ground and called her abusive names. However, according to him, once M started to cry he apologised for shouting at her and comforted her."

[9] The DNA evidence which linked the appellant to N demonstrated that he had had sexual contact with her, resulting in his semen being deposited into her vagina. His blood was also on her clothing. She gave evidence that the appellant had put his hand over her mouth, dragged her by the hair and assaulted her, and that he had forced stones into her mouth. There was medical evidence that grit was found far back in the left hand side of the complainer's mouth, and that her vulva and pubic area were ingrained with dust and dirt. When she ran off, she was observed in an obviously distressed state and apparently naked from the waist down, in the carriageway of the Broomielaw, by a taxi driver and his passenger. The passenger described N as "very distressed...shaking and holding her clothing about her". She said in terms: "I have just been raped". The passenger went into the area of the car park adjacent to the construction site where the complainer said she had just been attacked, and saw the figure of a man. She challenged him with having raped the complainer. He denied it, but moved away. A police officer described the complainer's face as being dirty and her top lip as swollen. The taxi driver gave evidence of stones and grit on her when she was sitting in the taxi. In addition to the grit inside her mouth, medical examination revealed that her whole vulva and pubic area was dirty, there was redness to the vulva, the vulva was covered in mud, dirt and grit, and there was grit inside in the vaginal canal. The examining doctor, Dr Groom, who had significant experience of examining prostitutes, had never before found grit in the vagina. Other injuries on the complainer included multiple abrasions to the left forearm, pressure marks to the wrists, bleeding to the right arm and elbow, bruising of the right arm, abrasions on both hands, light superficial scratches along the wrist, abrasions to the upper back, and grazing to the buttocks.

[10] The evidence of the complainer on charge 4, M and the independent supporting evidence demonstrate that she was subjected to a similar attack in similar circumstances. The similarities included digital penetration, anal penetration, vaginal penetration from the rear, and forcing of the private member into her mouth causing her to choke. M, like N, spoke of being required to repeat abusive names that the appellant called her. She also, like N, spoke of her mouth being covered and being forced to the ground. The other evidence again came from a number of independent sources. The findings on medical examination are striking. Grit and dirt and multiple small particles of black debris were found in her pubic area. There were areas of redness at the very top of the groin area and black particles of debris at the complainer's anus. A bruise to the inside of her left thigh was consistent with forced intercourse, and was difficult to explain by a fall. DNA evidence demonstrated sexual contact between the complainer and the appellant. He had ejaculated onto her face and semen had been transferred onto her vulva and lower vaginal area. There was also evidence of sperm on her vest. A taxi driver saw what he took to be a couple standing at the corner of Argyle Street and James Watt Street. The man kissed the woman, said "I'll be back" and crossed James Watt Street. M immediately started screaming that she had been raped. Her condition was described as "hysterical". The taxi driver tried to follow the man with his taxi. He saw him approach another woman whom he knew to be a prostitute. He shouted a warning to her. The man ran off and succeeded in eluding him. The taxi driver reported what he had seen immediately to a police officer on foot patrol on Argyle Street. The officer described M as being "in a bad state, crying and screaming...dishevelled, trousers unbuttoned, jacket lying lop-sided on her body...extremely agitated...crying and sobbing". Medical examination also revealed two linear abrasions on the back of her left shoulder, a swollen left upper eyelid, and bruising to the lower back and to the left thigh and knee.

[11] Statements given to the police by both complainers were available to defence counsel. The complainers are described by the trial judge in his report as being "skilfully cross-examined by Miss McMenamin QC, who appeared for the appellant, in large part on the basis of inconsistencies as between their evidence and their police statements". In the case of the complainer on charge 1, the trial judge explains that much was made of the fact that she had initially not admitted to the police that she had been working as a prostitute that night, preferring in her first statement to explain her contact with the appellant as relating to drug taking. It was put to both complainers that their complaints were made because they had been caught attempting to steal. It is clear that the jury accepted the accounts given by both complainers. They could not convict on either charge unless they accepted the evidence of the complainer on that charge.

[12] In addition to the material we have already referred to, Miss McMenamin also had available to her, as a basis for cross‑examination, the account of events that she knew the appellant would give in evidence. In our opinion the non-availability of the statement and police interviews would not have led Miss McMenamin to approach cross-examination of the complainers in a materially different way. In spite of there being no direct link between the complainers, they gave accounts of similar attacks upon them. The pictures they presented to the independent witnesses after the event were also remarkably similar, including their respective states of distress and the fact that each complained immediately at the first opportunity of having been raped. In addition the evidence of the presence of grit and stones in the mouth and vulva of the complainer on charge 1 and on the pubic area and anus of the complainer on charge 4 provides compelling evidence of an attack on each of the complainers of a nature quite different from that admitted by the appellant. In presenting his case in his address to the jury the Advocate depute nailed his colours to the mast of the compelling nature of the evidence led by the Crown and made no reference to the statement or the interviews.

[13] At a number of points in the course of his evidence the appellant displayed poor recollection of events which he attributed to the excessive consumption of alcohol. Although he admitted assaulting both complainers, he was unable to account for a number of their injuries. More significantly he was unable to explain the dirt and grit in the area of N's private parts and denied that she was naked from the waist down. He also denied putting stones and gravel in her mouth. He was unable to explain the grit and dirt around the private parts of M and maintained that her trousers were not down at the point when she did land on her bottom on the ground. In the case of both complainers he maintained that no part of the sexual activity had occurred when the complainers were on the ground as they said, but when they were on their feet, bent over, and he penetrated them from the rear. The absence of the evidence of the statement and the interviews would have made no difference to these aspects of the appellant's evidence.



Decision
[14] In these circumstances, there is in our opinion no real possibility that the jury would have reached a different verdict had evidence relating to the statement and interviews not been admitted. We therefore refuse the appeal.
Big Wullie

Quote:
The applicant, Mr Fraser Brian Summers, is a British national who was born in 1987 and is currently detained in HMP Glenochil in Scotland. He is represented before the Court by Ms R. Cameron of John Pryde & Co. Solicitors, a lawyer practising in Edinburgh.


I do not know where the court are getting their information from because Rosemary Cameron is not a solicitor to my Knowledge.

However having said this she managed to achieve something his Lawyers could not, and for this she is to be commended.
Big Wullie

Managed to find another case referring to Rosemary Cameron being a Solicitor here:

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-111362#{"itemid":["001-111362"]}

FOURTH SECTION

DECISION

Application nos. 19/11 and 36395/11
John Paul LANG and Tracy HASTIE
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 22 May 2012 as a Chamber composed of:

             Lech Garlicki, President,
             David Thór Björgvinsson,
             Nicolas Bratza,
             George Nicolaou,
             Ledi Bianku,
             Nebojša Vučinić,
             Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar.

Having regard to the above applications lodged on 24 November 2010 and 15 June 2011,

Having deliberated, decides as follows:

THE FACTS

A.  Introduction

1.  These cases concern two applicants who in 2008 were convicted in separate, unrelated criminal proceedings in Scotland. The common complaint in the applications is that each applicant was interviewed by the police without access to a lawyer and the evidence obtained from that interviewed was relied on by the prosecution at trial.

2.  The first applicant, Mr John Paul Lang, is a British national who was born in 1974. He is currently detained at HMP Glenochil. He is represented before the Court by Mrs Rosemary Cameron, a lawyer practising in Edinburgh with John Pryde & Co SSC.
Big Wullie

The cases keep flowing where Rosemary Cameron is referred to as a Solicitor from Edinburgh.

Ryan Paterson:

http://caselaw.echr.globe24h.com/...ted-kingdom-111357-19923-10.shtml

FOURTH SECTION

DECISION

Application no. 19923/10
Ryan PATERSON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 22 May 2012 as a Chamber composed of:

             Lech Garlicki, President,
             David Thór Björgvinsson,
             Nicolas Bratza,
             George Nicolaou,
             Ledi Bianku,
             Nebojša Vučinić,
             Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 29 March 2010,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant Mr Ryan Paterson is a British national who was born in 1984. He is currently detained at HMP Peterhead. After lodging the application himself, the applicant has subsequently been represented before the Court by Mrs Rosemary Cameron, a lawyer practising in Edinburgh with John Pryde & Co SSC.

Anyone know the outcome of Ryan Paterson's case ?

As far as this judgement is concerned it was referred back to the UK:
Quote:

A.  Lack of access to a lawyer during detention

31.  The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
Big Wullie

William Beggs:

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114250#{"itemid":["001-114250"]}

Quote:
2.  The applicant was represented by Ms R. Cameron, a lawyer practising in Edinburgh.


The list goes on and on.

       shirleymckie.myfastforum.org Forum Index -> Test Forum 1
Page 1 of 1
Create your own free forum | Buy a domain to use with your forum
Sincere thanks to all those who have supported Shirley and challenged miscarriages of justice on this forum.