A man accused of rape who objected to the admissibility of his police interview has had his complaint upheld.
A High Court judge ruled that the “repeated and prolonged” questioning of the accused after he indicated he would be exercising his “right to silence”, in the hope that he would change his “no comment” position, amounted to “undue pressure”.
Lady Scott heard that Jake Hawkins was charged with rape but raised a preliminary issue challenging in the admissibility of the 82-minute police interview, in which he was asked more than 200 questions relating to the charge.
Right to silence
At the outset the accused was cautioned and told that if he wanted a break or wished to have a further solicitor consultation that could be arranged and was again told he could remain silent, make no comment or that he could provide an explanation.
The accused stated at the outset on two occasions that he was going to follow the advice of his solicitor and make no comment.
Early on in the interview the accused did respond to general questions about himself and again later he responded to questions as to his general understanding of what rape is, but otherwise he made no comment until the later part of the interview.
The accused was also told that information obtained from the complainer and corroborating witness was that he had said to them that the complainer did not provide consent to have sex and that he had said he was sorry.
It was put to the accused he had effectively admitted he had raped the complainer and his apparent remorse told them that he knew he had done wrong.
He was asked to provide “any form of defence” and told “we believe you’re responsible” for raping the complainer
DC Anderson told the accused the police were impartial on three occasions and explained that they were asking for a defence and treating both the accused and victim on an equal footing.
In cross examination when it was put to him that this was not true and he had told the accused that he believed the accused was responsible for raping the complainer, DC Anderson denied that he was not in fact impartial, as this was said at the “impact stage” of the interview and he had not yet formed an opinion.
On three separate occasions the accused was asked to reconsider the advice of his solicitor to make no comment.
In conclusion DC Anderson said he felt he had been straightforward at the interview, he did not accept he had misled the accused at any time.
He kept questioning the accused, including at the impact stage, in the hope the accused would change his “no comment” position as he was looking for him to provide information.
On the final occasion DC Price asked the accused to them what happened, in response to which he replied “f*ck it” and proceeded to make lengthy incriminating statements.
Evidence ‘unfairly obtained’
The solicitor advocate for the defence, Kate Phillips, argued that the statements made by the accused at the police interview were “unfairly obtained” having regard to suggestions made to the accused to reconsider the exercise of his right to silence.
It was submitted that the questions the amounted to “cross examination” and that officers had challenged the legal advice given to the accused in an attempt to get him to depart from that advice.
On behalf of the Crown advocate deputy Lisa Gillespie submitted that in fulfilling their investigative role, it was appropriate for police to show “perseverance, diligence and patience” in questioning suspect who may be disinclined to answer questions.
The Crown emphasised the accused was cautioned at the outset and told that he could seek further legal advice during the interview itself.
Throughout the interview the accused was being asked only if he could provide an explanation, which was “entirely legitimate”, and an explanation was not being demanded, nor was he being urged to confess his guilt.
While the judge accepted that there was no bullying or aggressive confrontation, there was pressure applied for the accused to change his position and answer the questions.
He was asked 213 questions bearing on the allegation, to which he replied no comment.
In a written opinion, Lady Scott said: “I have concluded the repeated and prolonged questioning here, in the face of an exercise of the right to silence combined with repeated suggestions he should re-consider his exercise of that right constituted undue pressure.
“Here this was taken further and too far, by the statements made to the accused regarding the legal advice he had been given, which statements taken together and in the context of the whole interview clearly undermined that advice.
“Whilst I accept that when the accused did give in or change his position the statements were in the character of a long and relatively free flowing narrative. I am also satisfied this was a direct a result of – and therefore tainted by – the undue pressure applied.
“Accordingly I am not satisfied, having regard to all the circumstances, the Crown have established this interview was fair and the statements made can properly be said to have been voluntary. I therefore uphold the objection.”
The accused was ultimately found not guilty following a trial.