The Supreme Court dismissed an appeal against the Scottish Criminal Cases Review Commission’s refusal to refer a 2002 rape conviction following Cadder v HM Advocate. The Commission accepted that a miscarriage of justice might have occurred because the appellant’s admission of sexual intercourse, made in a police interview without access to a solicitor, was the only corroboration of that fact, but concluded that a reference was not in the interests of justice. The Court held that the Commission did not err in law by taking into account that he had never disputed the intercourse, had raised no challenge to the fairness of the interview on grounds available before Cadder, and had relied on the interview to place his defence of consent before the jury without giving evidence.
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Conviction and appeals
On 12 August 2001 the appellant had sexual intercourse with a woman who reported that she had been raped. The next day he attended a police station voluntarily, was cautioned, and declined to have a solicitor advised. Consistent with practice and the law as then understood, he was not offered access to a solicitor. He admitted intercourse but maintained that it was consensual, so semen on vaginal swabs was not subjected to DNA analysis.
At the trial in 2002 he pled guilty to one charge of indecent assault. On the rape charge the Crown used his admission as the corroboration which Scots law required of the fact of intercourse, and the interview was played to the jury without objection. Evidence of distress, injuries and a broken decorative chain corroborated the absence of consent. The appellant gave no evidence. He relied on the interview to put his defence of consent before the jury and so avoided cross-examination. He was convicted and sentenced to five years’ imprisonment, a sentence long since completed.
An appeal was refused in 2004. After the Commission referred the case on other grounds, a second appeal was refused on 6 May 2010. The court concluded that the evidence fully entitled the jury to convict and that nothing showed that a miscarriage of justice had occurred or might have occurred.
The Commission’s decision after Cadder
In Cadder v HM Advocate, decided on 26 October 2010, the Supreme Court held that, as a general rule, answers given to the police without an opportunity to consult a solicitor ought not to be admitted. Their admission did not itself make a trial unfair. A conviction would be quashed only if there was insufficient evidence without the interview or a real possibility that the jury would have reached a different verdict. The Court emphasised legal certainty in completed cases, while leaving the Commission to decide whether a reference would be in the interests of justice.
The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 required the Commission, under section 194C of the Criminal Procedure (Scotland) Act 1995, to have regard to the need for finality and certainty when deciding whether a reference was in the interests of justice. The Commission accepted that a miscarriage of justice might have occurred, because the admission was the only corroboration of intercourse. In reasons dated 27 January 2012, confirmed on 27 April 2012, it nevertheless refused to refer the case. It took into account the time since the conviction, the history of the earlier proceedings, the fact that the appellant had never disputed intercourse and had relied on the interview to present his defence, the absence of any objection at trial to the use of that interview, and the fact that neither appeal had challenged the fairness of the interview. It accepted that he could not be criticised for raising the point only after Cadder, but treated the reasons for that timing as irrelevant to the interests of justice.
No error of law
The Lord Ordinary, Lord Pentland, refused judicial review, and an Extra Division upheld that decision. Lord Reed, with whom Lord Kerr, Lord Clarke, Lord Hughes and Lord Hodge agreed, held that the Commission had not erred in taking the challenged considerations into account.
The fact that the admission was and remained undisputed was plainly relevant. It would not normally be in the interests of justice to quash a conviction merely because, under the law as later understood, there was no admissible corroboration of a fact that had never been in dispute. The possibility that advice from a solicitor might have led the appellant to remain silent was also relevant, but so were countervailing circumstances: he had declined to have a solicitor notified, the swabs were available as potential corroboration, an early claim of consent might have been thought to assist credibility, and the admission itself explained why the swabs were not tested. Those matters did not remove the relevance of the undisputed admission.
The absence of a challenge to the fairness of the interview was likewise relevant. Cadder created a new ground of objection, but unfairness in the conduct of an interview, or in the use made of it at trial, was already a recognised ground, and no such challenge had been made. The appellant’s reliance on the interview was also a proper consideration. Because the admission was admissible under the law as it then stood, fairness required the whole interview to be placed before the jury so that the admission was seen together with his claim of consent. He was therefore able to put his defence before the jury without giving evidence or facing cross-examination, an opportunity that would not have existed had the interview been inadmissible, and he took it.
Comparisons with other cases did not establish an error. Where references had been allowed to proceed, the statements went to issues that remained in dispute and whose truth was not accepted. The interests of justice require a broad evaluation of the circumstances of the particular case. The High Court does not simply repeat the Commission’s assessment; it rejects a reference only where the Commission has demonstrably failed in its task, for example by taking irrelevant factors into account. No such failure occurred.
Verdict: The Court unanimously dismissed Mr Gordon’s appeal. The Commission had been entitled to conclude that a reference was not in the interests of justice, and its decision stood.
Source: Gordon v Scottish Criminal Cases Review Commission [2017] UKSC 20
