Her Majesty’s Advocate v. Francis David Auld [2016] HCJAC 18

Application under section 3(3)(b) of the Double Jeopardy (Scotland) Act 2011:- Here the Crown sought to have the respondent’s acquittal from a trial in 1992 set aside and for authority to bring a new indictment. The evidence relied upon by the Crown in support of the application came from five witnesses who speak to remarks attributed to the respondent. Daniel McDougall was an acquaintance of the respondent who was not interviewed during the original investigation and stated in his affidavit that the respondent said “I won’t get done with that, I’m too cute for that”. Alexander McCartney is a retired prison officer who in 1992 was working at HM Remand Institution, Longriggend and whilst on remand the respondent stated “we were just fooling about and things got out of hand” in response to McCartney saying “it’s quite a heavy charge you’re in for.” Caroline Vandeleur reports asking the respondent “did you have anything to do with that lassie’s murder?” and the response “that’s something that naebody will ever know”. Patrick Vandeleur and Paul McAteer also spoke to comments made by the respondent after his acquittal at the trial when they began doubting his innocence and said he was no longer welcome in their social circle. It was submitted on behalf of the Crown that the statements to McCartney were admissible. On behalf of the respondent it was submitted that the statements purportedly made to McCartney were inadmissible. It was submitted that whilst on remand prisoners were under the care of the court. Here the court refused the application. The court considered that of all the statemenet attributed to the respondent the only one which could properly be considered to be ‘an admission’ was that which was said to McCartney. The court did not agree with the Crown when they submitted that any statement susceptible of being regarded as incriminating will necessarily qualify within the terms of section 3(3) of the 2011 Act. The court stated that any statement relied upon for the purposes of section 3 must be such as can fairly and reasonably be construed as an admission that the individual committed the offence. The only remark which could be said to be like that was the remark allegedly made to McCartney. The statement to Caroline Vandeleur “that’s something that naebody will ever know” was not an admission. The court observed that none of the remaining statements involved confronting the respondent with the allegations. In relation to what was said to McCartney the court considered that what was said could be construed as an admission, however, the court considered that the admission was inadmissible. McCartney had initiated the conversation with a view to eliciting a response which was likely to relate to the same subject matter, namely the charge on which he was remanded. The court observed that a prison officer dealing with a young prisoner on remand has to be very careful in relation to the type of conversations they become involved in and in the present case it could not be said that the statement of the respondent was voluntary or spontaneous.