HM Advocate v Aries [2009] ScotHC HCJ_4 (02 October 2009)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish High Court of Justiciary Decisons You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HM Advocate v Aries [2009] ScotHC HCJ_4 (02 October 2009) URL: https://www.bailii.org/scot/cases/ScotHC/2009/2009HCJ4.html Cite as: [2009] ScotHC HCJ_4, 2010 SCL 146, 2009 GWD 33-551, [2009] HCJ 4 [ New search ] [ Help ] HIGH COURT OF JUSTICIARY [2009] HCJ 4 HIGH COURT OF JUSTICIARY IN328/09 Opinion of SHERIFF KENNETH m MACIVER (Sitting as a Temporary Judge) lord PENTLAND in causa her majesty's advocate against CHARLES BERNARD O'NEILL and WILLIAM LAUCHLAN PAUL WELLER ARIES _________ th January 2009 For the Crown: A Miller, Solicitor Advocate; Advocate Depute For the accused: W McVicar , Solicitor Advocate; Fleming & Reid 2 October 2009 This case called before me in Glasgow High Court on 19 December 2008 for a Continued Preliminary Hearing in relation to the Cr own's application under section 65(3)(a) of the Criminal Procedure (Scotl and) Act 1995 , as amended ("the 1995 Act") for extensions of the 11 and 12 month time periods specified in section 65(1) ("the time limits" ). The Solicitor Advocates for each of the accused intimated, in line with Minutes previously lodged, that they wished to challenge the competency of the application. It was agreed by all parties that I should decide this question before hearing any argument on the merits of the application. Accordingly, the submissions I heard were restricted to that issue, as is this Opinion. In the application the Crown seeks retrospective extensions of the time limits in respect of charges 2 and 3 on the indictment. Those are charges of the murder of Alison McGarrigle on 21 June 1997 and attempting to defeat the ends of j ustice by disposing of her body. I s hall refer to those charges as "the time-barred charges" . It was argued on behalf of both accused that the application was incompetent because the indictment was a nullity insofar as the time-barred charges were concerne d. This argument was based on the fact that the accused had first appeared on petition in respect of the time-barred charges at Kilmarnock Sheriff Court on April 2005. The indictment (containing 18 charges in all) was not served until 10 September 2008 . Accordingly, since no preliminary hearing had commenced within 11 months of April and no trial within 12 months of that date , the provisions of section 65(1A) of the 1995 Act were engaged with the result that the accused were, in the words o f that provision, "discharged from any indictment" as respects the time-barred charges and could not be proceeded against on the present indictment as respects these charges. Mr McVicar for the first accused submitted that the time limits could not be ext ended because the time-barred charges were not competent charges and the Crown had no right to prosecute them . Under reference to Fleming v HMA 2006 SCCR 594 at paragraph [31], he contended that a pre-requisite for the competent exercise of the power cont ained in section 65(3)(a) of the 1995 Act was a live indictment. The present indictment, he said, could not be regarded as a live indictment insofar as it extended to the time-barred charges . He suggested that the correct (and only) course for the Crown to have taken in the circumstances of the present case would have been to apply to the Sheriff Court at Kilmarnock for extension of the time limits under section 65(3)(b) of the 1995 Act. The essence of his submission was that because charges 2 and 3 were time-barred, they should be read as pro non scripto or fundamentally null. It was as if, Mr McVicar said, the time-barred charges did not exist at all. That being the case, I had no power to extend the time limits under section 65(3)(a) because tha t provision could only be operated in circumstances where the offences had been competently indicted. Mr Carroll for the second accused adopted Mr McVicar's submissions and added some further arguments in support of the proposition that the Crown's applic ation was incompetent (Mr McVicar in turn adopted these further submissions). Mr Carrol said that the charges fell to be read as having been incompetently libelled since, as he put it, the Crown had no right to libel them. He referred to paragraph - 03 o f Renton & Brown's Criminal Procedure (6th edition) where a number of possible objections to the competency of charges were identified: these examples included a challenge based on the proposition that the provisions of section 65 of the 1995 Act had been breached. Since the bringing of the time-barred charges clearly entailed a breach of the time limits contained in section 65(1), the charges had to be treated, according to Mr Carroll, as having been incompetently brought. That being the case, the power to extend the time limits given in section 65(3)(a) simply could not be invoked since the time-barred charges were not competently before the Court. In the course of the debate , Mr Carroll developed his argument s by founding on the absence in section 65( 1A) of the 1995 Act of any reference to the consequences set out in that particular provision being made subject to section 65(3); he sought to contrast this with the approach in section 65(1) which was expressly stated to be subject to subsection (3) of section 65. Mr Carroll ultimately argued that the fact that section 65(1A) was not s tated to be subject to section 65(3) could only mean that the Scottish Parliament had intended, when passing the Criminal Procedure (Amendment) (Scotland) Act 2004 ("t he 2004 Act" ), to remove the Crown's right to apply for retrospective extensions of the time limits provided for in section 65(1) where the time limits had expired. He accepted (correctly in my view) that prior to the 2004 Act the time limits could have b een retrospectively extended ( I note that authority for this may be found in HMA v Mullen 1987 SLT 475) . This interpret ation of the effect of the Act was in accordance with what Mr Carroll described as the fundamental policy of protecting accused per sons against unreasonable delays in the prosecution of criminal charges. In my opinion, the competency arguments advanced on behalf of the accused are misconceived and must be rejected. In considering the arguments it seems to me to be helpful to recall the process of statutory amendment which has resulted in section 65(1) to (3) of the 1995 Act coming to be expressed in their present terms. The 12 month time limit for non-custody cases was first introduced by section 14(1) of the Criminal Justice ( Scotland) Act 1980 ("the 1980 Act") in implementation of a recommendation made by the Thomson Committee ( Criminal Procedure in Scotland (Second Report) October 1975, Cmnd. 6218, paragraphs 15.08 and 15.09) . Section 14(1) created a new section 101(1) of th e Criminal Procedure (Scotland) Act 1975 ("the 1975 Act"). This established an entirely new limit on the period which could elapse between first appearance on petition and the commencement of the trial in solemn procedure. If the trial did not commence wi thin that period of 12 months the con sequence was stated to be that " the accused shall be discharged forthwith and thereafter he shall be forever free from all quest ion or process for that offence" . This language was very similar to that which already app eared on the statute book in regard to the consequences of breach of the 110 day rule - see section 43 of the Criminal Procedure (Scotland) Act 1887 and section 101(3) and (4) of the 1975 Act. The 12 month time limit was restated by section 65(1) of the 1 995 Act which provided: "Subject to subsections (2) and (3) below, an accused person shall not be tried on indictment for any offence unless the trial is commenced within a period of 12 months of the first appearance of the accused on petition in respect o f the offence; and, failing such commencement within that period the accused shall be discharged forthwith and thereafter he shall be forever free from all question or process for that offence." In section 14 of the 1980 Act and in section 65 of the 1995 Act provision was made for the 12 month time limit to be extended on cause shown (as had been recommended by the Thomson Committee) . The relative application had to be made to " the Sheriff or, where an indictment has been served on the accused in respect of the High Cour t, a single judge of that court " (see proviso (ii) in section 101(1) of the 1975 Act, as introduced by the 1980 Act; and also section 65(3) of the 1995 Act). It can be seen from each version of the 12 month provisions that their common st ructure entailed firstly , a statement of the prohibition against prosecution on indictment where the trial was not commenced within 12 months of first appearance on petition; then a declaration to the effect that if the time limit was breached the accused was to be discharged and forever free from all question or process for the relative offence; and finally, the conferring of a power on the court to extend the time limit on cause shown. In relation to the power of extension, this was conferred on the Sher iff or, where a High Court indictment had been served, on a single judge of that court. The language of th is set of provisions seems to me to be clear and straightforward. In particular, in High Court cases a single judge of that court was to have power to extend the time limit on cause shown. In any other case (i.e. cases indicted in the Sheriff Court and those cases in which an indictment had not been served) the Sheriff was empowered to extend the time limit on cause shown. I can see nothing in eithe r version of the 12 month rules, as co ntained in the 1980 or the legislation, to support the view that where the 12 month period had already expired before the service of a High Court indictment, the power to extend the time limit on cause shown was t o be available only to the Sheriff and that in such circumstances the High Court was not to have the power to extend the time limit. The clear purpose of and the policy behind both sets of provisions was , as it seems to me, to contrary effect and the inte ntion clearly was to allow the Sheriff or, where a High Court indictment had been served, a single judge of the High Court to have power to extend the 12 month period on cause shown. The next stage in the statutory history came with section 6 of the 2004 Act. This amended section 65 of the 1995 Act in order to take account of the introduction of mandatory preliminary hearings in High Court cases as had, of course, been recommended in the Report by Lord Bonomy (" Improving Practice: 2002 Review of the Practices and Procedures of the High Court of Justiciary "). For present purposes it is sufficient to note that instead of being cited to a trial diet in the High Court, an accused was now to be required to attend a preliminary hearing within 11 months of his or her first appearance on petition. Section 6 of the 2004 Act provided inter alia as follows: " (1) Section 65 (prevention of delay in trials) of the 1995 Act is amended as follows. (2) In subsection (1), for the words from 'the trial' to 'that period' substitute- (a) where an indictment has been served on the accused in respect of the High Court, a preliminary hearing is commenced within the period of 11 months; and (b) in any case, the trial is commenced within the period of 12 months, of the first appearance of the accused on petition in respect of the offence. (1A) If the preliminary hearing (where subsection (1)(a) above applies) or the trial is not so commenced. (3) In subsection (2), after '(1)' insert 'or (1A)'. (4) In subsection (3), for the words from 'the sheriff' to the end substitute- (a) where an indictment has been served on the accused in respect of the High Court, a single judge of that court may, on cause shown, extend either or both of the periods of 11 and 12 months specified in subsection (1) above; or (b) in any other case, the sheriff may, on cause shown, extend the period of 12 months specified in that subsection." From this it can be seen that the approach taken in drafting section 6(2) of the 2004 Act was to divide the earlier statement of the 12 month rule into two parts in order to take account of the introduction of the new time limit of 11 months in High Court cases. The first part was to appear as the new section 65(1); this would contain the 11 and 12 month rules which w ere stated to run (as had until then been the case with the 12 month rule) from the first appearance of the accused on petition in respect of the offence. The second part of the new rule was now to be found in section 65(1A); this would express, in the sa me language as had been used in the 1980 and 1995 legislation, the consequences of failure to comply with the time limits. The statement of the courts' power to extend the time limits also had to be amended to take account of the new 11 month rule; this was done in section 6(4) of the 2004 Act, which amended section 65(3) of the 1995 Act. From this examination of the terms and effect of sub- section s (1) to (4) of section 6 of the 2004 Act it is clear, in my opinion, that their purpose was to reformulate the time bar rules in solemn cases where the accused was on b ail so as to introduce a new month time limit from first appearance on petition in High Court cases until the commencement of the new mandatory preliminary hearing. There is nothing to sugges t that the intention was, as Mr Carroll argued, far more fundamental than this and reflected a deliberate decision to remove the Crown's right to apply for a retrospective extension of the time limit in any case in which the time limit had expired before s ervice of a High Court indictment. In my view, it is clear that the purpose of adding section 65(1A) was to express the new (and somewhat more elaborate) rules in an orderly and sensible manner so that they could be easily understood and applied. Apart f rom the introduction of a new 11 month time limit to reflect the reform of High Court procedure in respect of mandatory preliminary diets, the broad structure of the statutory scheme remain ed unaltered. I accordingly reject Mr Carroll's submission that on e effect of section 6 of the 2004 Act was to remove the Crown's right to apply for a retrospective extension of the non-custody time limits. For completeness, I note that certain further minor amendments were made to sub-sections (2) and (3)(b) of section 65 by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. For present purposes, nothing turns on these alterations . That leaves the argument advanced by Mr McVicar and Mr Carroll to the effect that the High Court has no power to extend the time li mits because the indictment contained charges which were ( admittedly ) time barred at the time it was served and the indictment must, therefore, be treated as a nullity quoad those charges. In my judgment, this argument is misconceived. It seems to me tha t the charges are not null ; it would be more accurate to describe them merely as being time barred. Aside from the fact that the charges are brought out of time, there is no suggestion that they are, in form and in content, anything other than competent a nd relevant charges. Fleming v HMA ( supra ) lends no support to the proposition advanced on behalf of the accused; the short passage relied on by Mr McVicar (in paragraph [31]) was concerned with the effect of transitional provisions contained in the Crimi nal Procedure (Amendment) (Scotland) Act 2004 (Commencement, Transitional Provisions and Savings) Order 2004 (SSI 2004 No. 405) and had nothing to do with the point in issue in the present case. In my opinion, the statutory power of extension exists to al low the court to override the time limits where the court is satisfied that it is appropriate so to do. Looking at the statutory scheme as a whole, it seems to me that the power of extension conferred on the High Court "where an indictment has been served " contemplates the possibility that such an indictment may contain charges that are time-barred. On that analysis, there is no basis for the proposition that the High Court is not empowered retrospectively to extend the time limits where they have elapsed before service of an indictment . There may , I suppose, be a superficial sense in which the effect of the expiry of the time limit c ould be said to make it no longer competent for a prosecution to be brought, but to characterise the position in that way ten ds to ignore the possibility of the time limit being set aside on cause shown after it has expired . The argument for the accused breaks down, in my opinion, because it treats the expiry of the time limit as having irretrievable effect, whereas the true pos ition is that it is merely provisional in the sense that it is subject to exten sion by the court even after it has expired . Mr McVicar and Mr Carroll argued that the Crown should have appl ied to the Sheriff to extend the time limits. If it were correct th at the application had to be made to the Sheriff, this would mean that the practice adopted by the Crown in the present case of incorporating a number of charges, some time barred and others not, in a single High Court indictment and then seeking a retrosp ective extension of the 11 and 12 month time limits from a High Court judge w ould not be possible . The Advocate Depute told me that in the present case the Crown 's position was that all the offences charge d in the indictment constitute d stages in what she described as a single protracted course of criminal conduct. In this connection she referred to Reid v HMA 1984 SLT 391 in which the Lord Justice-General (Lord Emslie) observed (at page 392) that it had for centuries been the practice to try all outstandin g charges against an accused on a single indictment at the same time . The approach taken by the Crown in the present case in libelling the time-barred charges along with a series of other charges in a single High Court indictment seem s to me to be prima fa cie legitimate and appropriate. I would be reluctant to reach a decision which had the effect of putting difficulties in the way of such an approach unless a correct construction of the legislation drove me to such a conclusion . In my opinion, a proper i nterpretation of the relevant legislation does not support the arguments advanced on behalf of the accused on the nullity point . The true position, in my view, can be quite simply stated as follows. Where a ny High Court indictment has been served, the powe r to extend the 12 month period (and now the 11 month period) lies only with a single judge of that court. In any other case (i.e. where no High Court indictment has been served) the power to extend is vested in the Sheriff. This approach is , to my mind, sensible and appropriate. It would be surprising if the application lay to the Sheriff (and, according to the argument for the accused, only to the Sheriff) in a case where a High Court indictment had been served after the time limits had elapsed . The a rgument advanced on behalf of the accused would , if it were sound, tend to undermine the simple and straightforward scheme for extending the non-custody time limits which has operated since the 1980 Act. In my opinion, the position is clear; in a case whe re a High Court indictment has been served, including an indictment which contains charges that are time barred, power to extend the time limits is vested in a single judge of the High Court and not in the Sheriff. For these reasons, I reject all the argu ment s advanced by Mr McVicar and Mr Carroll challenging the competency of the Crown's application to extend the time limits. The next stage will be to consider the merits of that application and the remaining grounds of opposition to it which the accused have taken in a number of Minutes and Notices . [1] Paul Aries is indicted on a charge of culpable homicide involving the administration of heroin to the deceased Ross Brown, and three charges under the Misuse of Drugs Act 1971, all of them involving the supplying of controlled drugs to named individuals. The matter is scheduled for trial in November, with a further preliminary diet in late October, and I heard evidence in an evidential pre-trial hearing, essentially a trial within a trial, on Thursday 24 and Friday 25 September. This followed upon the presentation of a minute claiming that the evidence of statements made during the police interview of the accused should not be admitted for a variety of reasons. Before or during the hearing, matters crystallised somewhat and I was advised that there would no longer be an issue in relation to Mr Aries fitness to be interviewed and also that the ground relating to the absence of a solicitor during interview would not be pursued. Essentially, two grounds remain and I deal with them in a moment, but there is one outstanding matter which may or may not return for a decision by the trial judge. Within the interview there are references made either by the interviewing officers or by the accused to matters which are obviously inadmissible and both parties agree this in principle. The Crown will make redactions to the transcription of the police interview and I was advised that it is likely that these matters will be agreed. If there is any small disagreement in relation to any particular portion, that disagreement will require to be settled by a decision of the trial judge. I was advised that this is unlikely. [2] This decision therefore is made solely on the issues which were raised and fully argued in the evidential hearing and in that hearing, I heard the evidence of two police officers, DS Litster and DC Brownlee. I also heard the evidence of the accused and the procedure in the evidential hearing was that of a trial within a trial, there being a clear understanding that it was for the Crown to satisfy the court that the statement was fairly obtained. There was no argument that the standard of proof was that set out in Platt v HMA 2004 SCCR 209, namely proof on the balance of probabilities. [3] The first of the two grounds is that covered by paragraph 4 of the minute and it relates to the entirety of the interview. Essentially the argument there is that the police officers offered an inducement to the accused which resulted in him effectively making incriminatory statements which he would not otherwise have made. The inducement alleged was that it was put to him that, unless he said "certain things", he would not be released and would be locked up for a long time. He understood the "certain things" which he was to admit to, were the supplying of controlled drugs to five named individuals. He said he was not told that in specific terms but he understood it from the tenor of the questions. The clear position of the accused was that it was DS Litster who told him that and that the inducement was made when only he and DS Litster were present, DC Brownlee having left the interview room to get cigarettes. I should mention at this time that the two police officers had given evidence before the accused and neither of them had been asked directly or indirectly if this inducement had been made at a time when only one was present. Indeed it was clear from a reading of my notes on their cross-examination that the position put to them by defence counsel proceeded on the basis that they were both present when this inducement was made. For completeness I should say that both officers completely denied any such conversation or threat. [4] It is clear and should be recorded that the nature of this alleged inducement is such that if it was indeed made, it would most obviously be improper and render inadmissible any questioning which flowed from it. [5] In this case, I did not find any basis for any suspicion that this inducement had been made. The evidence of the accused was entirely unsupported by anything else occurring anywhere within this interview setting as recorded on audio and video, and although it was argued by Mr McVicar for the accused that Detective Constable Brownlee's opinion that he was surprised when the accused admitted supplying drugs to the deceased, was supportive, I cannot agree with that - it was at the most a comment on the nature of the accused. Under this procedure, I am of course obliged to a limited extent as described in Thomson v Crowe 1999 SCCR 1003 to decide upon issues of fact and in so doing to reach a view on credibility of witnesses. I do so for this purpose only and acknowledge that the issue of credibility of testimony may again be an important one for a jury. In this particular case however, I was in no doubt that the evidence which I heard from the police witnesses was credible and was supported by the whole tenor of what I considered to be a very fair and moderate interview in which no hint of any arrangement or suggestion about remanding the accused in custody arose. I did not find the evidence of the accused in this connection to be persuasive in terms of its credibility. [6] The background to the whole detention scenario here was an ongoing enquiry into the death of a young man called Ross Brown and in that enquiry, another individual who was suspected of supplying the deceased with drugs of some sort, had earlier been interviewed, had confirmed such supply and had been released. The police did not have the final results of toxicology in relation to the deceased, and consequently had no cause of death for him at the time of this interview although they were aware of the likelihood that drugs may have played a part in his death. There was, in my view, absolutely no possibility that they could have charged the accused with murder or culpable homicide on the basis of the information which they had at the start of this interview and accordingly there was, in my view, no likelihood that they had any plan in any event to remand the accused or anybody else in custody until such time as they had a cause of death. I was therefore of the view that it was inherently unlikely that this would ever have been in contemplation and apart from any issues of credibility, I did not find it at all likely that there was any conversation of that sort prior to what is recorded on the tape, and I was satisfied that there was no conversation which related, specifically or generally, to what the accused should say during the interview, nor about his status at the end of it. Accordingly, I had no hesitation in repelling this objection and ruling that the whole of the interview (subject to subsequent agreed deletions) should be admissible and should be before the jury for their consideration of it and of any connected factual issues which may be led before them in relation to it. [7] The second and separate complaint is that I should exclude from evidence on the basis of inadmissibility, that part of the interview which deals with the supplying of drugs to Ross Brown, the deceased in this case. The objection to that portion of the interview is made on the basis of two separate circumstances which, it is said, created a situation of unfairness and consequent inadmissibility. This is covered in paragraphs 7, 8 and 9 of the Minute. [8] The first circumstance is that the accused was given a caution upon detention and again at the start of the police interview, which clearly related only to his right not to answer questions dealing with the supply of controlled drugs . There is no complaint about the actual terms of either caution. The second circumstance arises just a few minutes into the recorded interview when DS Litster very clearly says to the accused that he is involved in an enquiry into the death of Ross Brown and that the evidence gained during that enquiry has led to Mr Aries' detention. He goes on to say: "Now we would say that you have not been detained on suspicion of causing his death, you understand that. You have been detained on suspicion of being concerned in the supply of heroin but the things that I will be asking you about will obviously relate to his death and the circumstances of how he came to be in your house and what happened when he was in your house. You understand all that?" The accused agreed that he understood it all and he was then questioned about the supply of heroin to a number of different persons including the deceased, Ross Brown. In the course of the interview, he made admissions in relation to the supply of drugs to different people, including an admission that he allowed Ross Brown to share with him in the inhalation of heroin fumes to the extent of just less than half of a £10 deal. He did not, in any sense, admit to being responsible for his death or in being reckless in allowing the deceased to so inhale. [9] The argument is further developed in the Minute and at the evidential hearing by a contention that on the first occasion when, in the course of the interview, the accused admitted being concerned in the supply of drugs to the deceased, he should at that point have been specifically cautioned in relation to the cause of culpable homicide, and further, that when the interview was suspended for a period of time, and a second interview followed, the caution given to him at the start of that second interview should have been in respect of culpable homicide and not simply in respect of drug supply. [10] I deal with this matter in two parts. First, whether it was necessary for the interviewing officers to formally caution by the use of the usual words in relation to a charge of culpable homicide and secondly, if it was not, whether the overall tenor of the interview in that area was fair or unfair to the accused and whether on that basis it should be allowed to go before the jury for their consideration. [11] In dealing with the first of those, it was argued by the Crown in a submission not specifically countered by counsel for the accused, that it is not necessary under our present law for suspects under interview to be cautioned in any particular form or indeed at all, prior to being asked questions. There is of course a classic form of caution which is generally used, and there is no issue in this case about the actual words. The Crown referred me to Pennycuick v Lees 1991 2 SCCR 160 as authority for the submission that there is no rule of law which requires a suspect to be cautioned before any question can be put to him by an investigating agency, including the police. There is no doubt in my opinion that this is the current law in the area, but the judgment of the court on that occasion went further in that it is clear that in that circumstance, for the answers to questions to be admissible, the questions must be fairly put, designed to obtain information and not designed to trap the accused into any form of incriminating or evidentially useful reply which could not otherwise have been obtained. The overriding issue was said to be fairness. I think that the authority of that decision was accepted by Mr McVicar and that his argument was more strongly directed at the issue of fairness, but he did refer me to Renton and Brown at 24.39 and argued that the fact that the accused had not been specifically cautioned in relation to culpable homicide, breached his right of self-incrimination. He contended that it was obvious that somebody who has supplied drugs to a person who had died, most probably from the ingestion of drugs, must be a suspect in relation to culpable homicide and that in such a serious matter it was important if not necessary, to give a caution, that importance increasing as the interview went on and as the suspect admitted a level of involvement in the supply of heroin to the deceased. [12] I do not want to become involved at this stage in what may be an issue later in this case in relation to either amendment of the Indictment or the possibility of an alternative verdict being open to the jury, but I have to observe that there is a very close relationship between supplying drugs to a now-deceased and issues surrounding the causation of that death. Accordingly for the purpose of this decision I say in relation to the first part of Mr McVicar's argument only this, - that, in the particular circumstances here, where Mr Aries cannot have been in any doubt at all about the entire subject matter of the enquiry, it was not necessary in law to specifically caution him in relation to culpable homicide. Although I find that to be a relatively easy decision to make in principle, it is important also to understand that, as a matter of fact, the police at the time of that interview, simply did not know whether or not the ingestion of heroin or any other particular drug had played any part in the death of the deceased and could not in reality have detained the accused with any degree of credibility on a charge of culpable homicide. No charge or indeed allegation arose at that point in time, nor could it arise in such a technical matter until the results of the toxicology were known. Accordingly I am quite clear that at that point and at the two subsequent points referred to by Mr McVicar it would not have been either necessary in law or appropriate in practice for a specific caution in relation to culpable homicide to have been administered to the accused. [13] The second leg of the argument involves fairness and in that connection, it is necessary to look at the overall circumstances, including matters referred to at various points earlier in this opinion. Having considered all of the evidence which I heard and the careful submissions on both sides in respect of the issue of fairness, I am clear that there is absolutely no evidence here that there has been any unfairness to the accused in this interview. In making this decision, I have examined the state of knowledge of both the police officers and the accused at the time when this interview got under way. The accused had by then twice been formally cautioned in relation to supplying drugs and could be in no doubt that the interview was about an allegation that he was concerned in supplying drugs to various persons locally, and additionally, before they asked him any questions about the supply of drugs to anyone, they made the statements referred to above concerning the deceased, Ross Brown. He was specifically advised that he had not been detained on suspicion of causing that person's death, but rather on suspicion of being concerned in the supply of drugs and they then told him that he would be asked questions which related to the supply of drugs to the deceased Ross Brown. Considering their state of knowledge and my view that they could not properly and fairly have detained him for culpable homicide at that time, it is hard to see how they could be any more straightforward and fair with Mr Aries other than simply not to interview him at all. In the latter event, there would be a clear argument that they would not be fulfilling their public duty to investigate a death which may have a connection with the ingestion of one or more substances and in that connection, they had already interviewed another person who, I was told, admitted that he had supplied the deceased with a particular type of drug. The fact that when the accused did, in the course of the interview, admit that he had supplied the deceased with a small amount of heroin by sharing it with him only increases my conviction that the police were acting in good faith because they did not immediately seize upon that admission and then charge him with culpable homicide at the end of the interview or indeed accuse him of culpable homicide during it. [14] An examination of the whole interview gives some insight into the approach to it by both DS Litster and by the accused and the tenor of the interview both in print and audibly and visually is one of openness and co-operation on both sides it should be said with no hint of deceit or trickery in the questioning or in the underlying basis for the interview taking place at all. Neither party knew with any degree of certainty why Ross Brown died, and it has to be understood that the accused knew about the death of Ross Brown from the very outset, since he died in his house and he saw his body before the police did. This was not a case where the young man died immediately following the ingestion of heroin, rather, as I understand it, he was found dead in the morning, some hours after he had taken heroin and to the knowledge of the accused, other drugs and alcohol also. [15] Accordingly, applying what I am satisfied is the appropriate test under our law as it currently stands, I have to ask whether having taken into account all of the available information, there has in the particular circumstances here, been any unfairness on the part of the interviewing officers in the conduct of the interview. I have to answer that question in the negative and accordingly I will repel the admissibility objection and I will declare that the evidence of statements made in the police interview of the accused is admissible evidence which may be led by the Crown before the jury for their consideration. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotHC/2009/2009HCJ4.html