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The questioning of suspects
The questioning of suspects by the police can be broken down in to three stages. This approach was established in Chalmers v HMA. Stage one takes place before any suspicion falls on the individual and during this stage any question can be asked. Stage two takes place after suspicion crystallises on the suspect and the rules of fair questioning kick in to protect him. Stage three is post charge and no questions may be asked.
An investigation may remain at stage one as long as the individual is not the only person under suspicion, as shown in Bell v HMA where the whole crew of a ship were under suspicion. Once suspicion has hardened on an individual the investigation moves to stage two. When the questioning progresses to stage two, and before any questions are asked the accused should be cautioned. The caution that is given is a common law caution which informs the suspect that he has the right to remain silent and that anything he says may be used as evidence in court.
A confession is an incriminating statement made by someone who later becomes the accused in a criminal trial and as a result is a very strong piece of evidence as it is a statement against the makers own interests. Confessions are admissible in court providing they have been extracted fairly. An example of a confession extracted in unfair circumstances can be seen in Codona v HMA where a 14 year old was intensely questioned for three hours during this time the accused was asked the same question 19 times. In criminal cases a confession can normally never be the sole evidence in a case due to the Scots law rule of corroboration of essential facts however it is potentially one of the most powerful items of evidence that can be adduced against an accused. A special knowledge confession is a confession which shows that the accused had inside knowledge of the crime. Independent corroboration is not required for a special knowledge confession as they are considered to be self corroborating. Any information given by the suspect must only be known to him because he is the perpetrator of the crime, such as knowing some detail of the offence that only the person who committed it would know. If there is any other reasonable explanation the confession will not be regarded as a special knowledge confession as shown in Wilson v HMA where information on the details of the offence had been in the public domain.
Campbell v HMA is an example of when an accused can make incriminating statements during questioning which can later be used against him. In Tonge v HMA the accused, Tonge, and his co accused, Gray, were being detained by the police on suspicion of rape. Tonge was not given a caution but his co accused was, but not between the accusation and the completion of his statement. The police questioned both suspects in their cells and both made incriminating statements. As no common law caution was made to Tonge at any point an objection to the admissibility of each of these statements was upheld on appeal.
If the accused is not given a common law caution when police questioning reaches stage 2, any answers to questions may be inadmissible, but not automatically so, the overall test is one of fairness. As stated by Lord Justice General Clyde in Brown v HMA it is not possible to law down the precise circumstances in which answers given to the police prior to charge are made admissible or inadmissible, it is dependant on the facts of the case and whether what has taken place has been fair or not.
In Custerton v Westwater the accused was asked to attend a police station for questioning and did so voluntarily. After being told of the allegation, to which he made no reply he was asked if he owned a knife to which he then made an incriminating reply. He had not at this stage been cautioned. The High Court held that this reply was admissible, despite that lack of caution as the response was not made in reply to an allegation, but an unobjectionable question, and that the accused had attended the police station voluntarily.
Firstly as Ian has admitted carrying out the assault he should be advised to plead guilty, however it appears unlikely that he would do so. In the example given it does not state whether Ian was cautioned before questioning so the assumption shall be that he was not. The statement that he made stating that the victim “was not as badly injured as that” could be considered to be an incriminating statement and the prosecution could potentially even argue that it is a special knowledge confession as it shows inside knowledge of the crime. Further information required would what time period had passed between the incident and the police requesting Ian to attend the police station and what reason they had for suspecting him of the crime. If their had been any period of time between the offence and the questioning taking place then following Wilson v HMA it could be argued that Ian could have obtained the information from another source, possibly the press or word of mouth or from someone who was their. The defence would be able to argue, with a good chance of success that the incriminating statement should be inadmissible as it was made while being questioned without caution following Tonge v HMA. Although as seen in Custerton v Westwater, an incriminating statement made prior to caution can still be admissible, that case is not on all fours with this example and the two cases can be distinguished on the following grounds, although in both cases the accused attended the police station voluntarily, in Custerton v Westwater the incriminating statement came in response to an unobjectionable question, it was not in response to an allegation, as in this case. In this example suspicion was clearly on Ian as he had an allegation of assault put to him, therefore the questioning had reached stage two and Ian should have been given a common law caution. It could be argued that the methods employed to obtain the incriminating statement fail the fairness test.
In order to obtain a criminal conviction the crown must lead sufficient evidence. The two aspects to consider on the subject of sufficiency are proof of the crucial facts, the facta probanda of the crime libelled, and proof of such facts by corroborated evidence. The facta probanda, or facts to be proved must be proven by corroborated evidence as shown in Smith v Lees, if this can not be done, a conviction can not be obtained. The crown must prove that the crime libelled was committed, and that it was committed by the accused.
Corroboration is evidence that strengthens or supports a statement or the testimony of a witness, as stated in Fox v HMA where evidence in support of the complainer's clandestine injury came from the complainer's distress. As shown in Fox, the corroborating, or supporting evidence must confirm or support the other piece of evidence relied upon. The court will usually identify the strongest piece of evidence and ask if the weaker piece confirms of supports it. Corroboration is commonly found in a combination of direct testimony and circumstantial evidence and in Scotland it is the rule that corroboration of evidence from a second and separate source is required and provides an independent check on the reliability of the fact in question. Few other jurisdictions have a rule of corroboration. Only the facts in issue require corroboration, also known as essential or crucial facts, these are the matters in dispute which establish the accused's guilt. The requirement for two “witnesses” implicating the accused was provided by Lord Justice Clerk Aitchison in Morton v HMA, however two “witnesses” should be interpreted as more than one independent source of evidence, which does not need to be in the form of direct eye witness testimony.
Normally where there is more than one charge on a complaint or indictment the crown must corroborate the identification of the accused in relation to each separate charge, however there is an exception to this rule and it was provided by Howden v HMA. In Howden the accused was charged with two robberies, one of a bank and one of a building society, the robberies happened two weeks apart and they were similar in circumstances. Their was a positive identification of the accused in relation to the building society robbery, but not in relation to the bank robbery.
As there were multiple similarities between the two offences it was held that the person who committed the building society robbery must have committed the bank robbery. The appeal court judge in Howden agreed with the trial judge that if satisfied beyond all reasonable doubt that the offences were committed by the same person and that Howden was the perpetrator of at least one of them, then it was not necessary to have a second identification.
In Moorov v HMA the accused was charged with a series of assaults and indecent assaults against female employees, all but one took place at short intervals over a period of three years. In Moorov it was held that similar to Howden, one piece of evidence from one charge can corroborate another charge on the same indictment providing there are similarities between the offences, not the accused as in Howden.
Where DNA evidence is found in a place or an object that is connected with a crime, there will be regarded as being sufficiency in the absence of innocent explanation by the accused. This would appear to be an exception to the corroboration rule. In Maguire v HMA the accused was convicted as a result of his DNA being found in a mask which was left at the scene of the crime.
It would be beneficial to know what grounds the police had to suspect Ian as something must have drawn suspicion towards him or there may be some undisclosed evidence, such as one of the victims being able to give a description, CCTV evidence or even DNA evidence. As Ian has left DNA on every victim by spitting on them, this is possible and means that there is at least one piece of evidence per victim. However if there was sufficient evidence Ian would most likely have been charged by this stage. As the way Ian carries out his attacks have very unique characteristics if one of the victims could identify him or there was CCTV evidence of him committing one of the crimes then following the Howden rule corroborated evidence could be transferred between the offences, thus if the court deemed that the same person committed all of the attacks, and it could be proved that Ian was responsible for one of them, he could be convicted of them all. Similarly, if it could be proved that the offences were so unique, such as the attacker spitting on the victim, that the same person must have committed them all, and Ian was convicted of one, he could be convicted of them all following Moorov. As previously shown, the incriminating statement made during questioning would be inadmissible and is not a cause of concern for the defence. Conviction for the alleged assault depends on what further evidence the police may have, apart from the potential DNA evidence. If the other attacks are linked and suspicion falls on Ian then he stands a high chance of being convicted for them following Howden and Moorov.
Three types of burden of proof exist; the persuasive burden, the evidential burden and the tactical burden. The persuasive burden is the most important and is attached to a particular party by law, never moves and is required to satisfy the court on a particular issue. The evidential burden is on the party producing evidence in order to allow the court to consider it and the tactical burden is the only burden that can shift during the course of a case and can shift to the accused after the crown presents a prima facie case. An example of the tactical burden shifting can be seen in Fox v Patterson where the accused was found in recent possession of stolen goods. The general rule in criminal cases is that the persuasive and evidential burdens fall on the crown, with the exceptions being special defences and statutory exceptions. This is due to the presumption of innocence of the accused as stated in Mackenzie v HMA.
As the burden of proof falls on the crown, in order to obtain a criminal conviction the crown must lead sufficient evidence to show that the crime libelled was committed, and that it was committed by the accused, known as the Facta probanda. This must be supported by two pieces of corroborated evidence from independent sources as shown in Morton v HMA, one piece of evidence will not be enough. As seen in Fox v HMA the pieces of evidence must confirm or support each other, if they conflict with each other then the corroboration rule is not satisfied. The crown does not have to corroborate each part of the libel as long as the main parts, or parts in issue can be corroborated, and example of this can be seen in Campbell v Vannet where one part of an assault was corroborated by two witnesses and the other part of the assault corroborated only by one.
There are however exceptions to the corroboration rule. A special knowledge confession is a confession where inside knowledge of the crime is shown and the only reasonable excuse for confessor having that knowledge is that he committed the crime. A special knowledge confession is considered to be self corroborating and does not require further corroboration. An example of a special knowledge confession can be seen in Woodland v Hamilton.
In Howden v HMA the accused was charged with committing two robberies, one of a building society and one of a bank. The employees of the building society were able to positively identify the accused by the bank employees were not able to do so. As their were several similarities between the person who robbed the bank and the person who robbed the building society the court held that if the jury could satisfy itself beyond all reasonable doubt that the offences were committed by the same person, and it could be proved that Howden committed one of them, then he could be convicted of both offences.
Similarly in Moorov v HMA the accused was charged with 21 assaults which included indecent assaults which took place mainly over a three year period on female employees. It was held that one piece of evidence from one charge can corroborate another piece of evidence on another charge, and vice versa, on the same indictment providing there are sufficient similarities between the offences, and they are connected by time, character and circumstance, enough to make the court believe that the offences must have been committed by the same person. The evidence of a greater charge can corroborate a lesser charge, but not vice versa. The difference between Moorov and Howden is that the Moorov rule relates to similarities between the offences, where the Howden rule relates to similarities between the offender.
There are also statutory exemptions to the rule requiring corroboration, such as forensic evidence, but only where the accused will not challenge it. And where the statutory burden on the accused is evidential only, uncorroborated evidence will suffice as shown in Farrell v Moir
The statement given stating that the requirement for corroborated evidence in Scotland of the essentials of a criminal charge is meaningless in practice due to the content of requirement and exceptions to it is an inaccurate one. Forensic evidence may not require corroboration where it is not challenged by the accused and as shown there are other statutory exceptions relating to evidential burdens on the accused. The Moorov and Howden rules allow corroborated evidence to be transferred between charges on the same indictment when the court is satisfied that there are sufficient similarities between the person who committed the crimes, or the crimes themselves to conclude that the same person committed the crimes. This allows the transfer of corroborated evidence, not the invention of it, and these rules could only be applicable where the suspect was charged with more than one offence. If he was charged with only one offence neither could be used and two pieces of corroborated evidence would be required. Therefore the requirement for corroborated evidence is in practice far from meaningless due to the few exceptions which exist in certain circumstances.
DP Auchie, Evidence (3rd edn, Thompson W. Green, Edinburgh 2008)
F Raitt, Evidence; Principles, Policy and Practice (Thompson W. Green, Edinburgh 2008)
F Raitt, Evidence (3rd end, W.Green/Sweet & Maxwell, Edinburgh, 2001)
D.Sheldon, Evidence: Cases and Materials (W.Green/Sweet & Maxwell, Edinburgh, 1996)
A.B Wilkinson, The Scottish Law of Evidence (Butterworths, Edinburgh, 1986)
MD McCannel “Special Knowledge Confessions” (1993) S.L.G. 61(4), 142-143
I.D. Macphail “Safeguards in the Scottish Criminal Justice System” 1992 SLR
Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings. HMSO, 1986. Scottish Law Commision No.100
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