Her Majesty’s Advocate v. Jake Hawkins [2017] HCJ 79

Opinion re objection to admissibility of police interview:- The accused was indicted on a charge of rape. A minute objecting to the admissibility of the accused’s police interview was lodged and a hearing on the minute took place at the high court on 21 August 2017. Evidence was led by the Crown with a view to establishing that the interview was conducted fairly. In particular, evidence was led from DC Anderson the reporting officer and one of the interviewing officers who spoke to the content of the interview. It was contended on behalf of the accused that the statements obtained form the accused during the course of his police interview had been unfairly obtained:- (1) he was repeatedly asked to waive his right to silence; (2) the questioning of him amounted to cross-examination; and (3) he was repeatedly challenged about the legal advice given to him in an attempt to get him to depart from that advice. It was submitted on behalf of the Crown that the police have an investigative role to fulfil and in the present case the interview demonstrated perseverance, diligence and patience on the part of the interviewing officers. It was further submitted on behalf of the Crown that the accused had been repeatedly cautioned and early on in the interview he was advised that he could seek further legal advice at any time during the interview. In addition, it was submitted that there had been no bullying or intimidation and the accused was only being asked for an explanation and the accused was an intelligent person who appeared to adequately deal with the interview process and any admissions were spontaneously and voluntarily given. Here the court sustained the objection and ruled that the accused’s police interview was inadmissible. On hearing the evidence the court did not consider DC Anderson to be a credible witness and thought him to be evasive. On the other hand the court accepted the evidence of the accused, in particular, in relation to the effect the police questioning had on him which resulted in his change of position. The court considered that the police sought to obtain a change of the accused’s position in the face of the accused’s clear stated position that he wished to make “no comment”. The court considered that the police applied undue pressure on the accused to get him to answer their questions and the admissions could not be said to be truly voluntary. The court considered the following factors were relevant in relation to that undue pressure:- (1) at the time of the interview the accused was the only suspect; (2) there was prolonged and repetitive questioning (213 questions) of the accused in the face of “no comment” answers; (3) questioning during the “impact stage” of the interview amounted to cross examination; (4) the interviewing officers repeatedly suggested to the accused that he should reconsider the advice of his solicitor to make no comment and that this amounted to undue pressure; and (5) during the questioning of the accused it was repeatedly suggested to him that his solicitor did not know what the evidence was and this appeared to be with the intention of undermining the legal advice given with a view to getting the accused to depart from his position and the court considered that such conduct was “wholly improper”.