R.M.M. v. Her Majesty's Advocate [2012] HCJAC 157

Criminal Note of Appeal Against Conviction:- The appellant was convicted of a charge of rape (under deletion of the word "repeatedly") following a trial at the High Court in May 2009. During the course of the trial the Advocate depute withdrew a charge alleging that the appellant supplied cocaine to the complainer in contravention of section 4(3)(a) of the Misuse of Drugs Act 1971. The case was referred to the appeal court by the Scottish Criminal Cases Review Commission. Following the incident forming the subject matter of the charge the police detained the appellant and he was was interviewed at length by police officers in respect of the allegation that he raped the complainer. He was not offered any opportunity to obtain any legal advice before being interviewed, as was the norm prior to the decision in Cadder v HMA [2010] UKSC 43. Evidence of the terms of the two successive interviews conducted by the police was adduced and relied upon by the Crown during the appellant's trial. Here two grounds of appeal were argued:- (1) that the use made by the prosecution at the trial of the terms of the interviews conducted by the police, when the appellant had not been afforded the opportunity of receiving legal advice resulted in a miscarriage of justice; and (2) the deletion of the word "repeatedly" rendered the verdict ambiguous and incapable of satisfying the requirement under Article 6 of the European Convention on Human Rights for a reasoned judgment. It was accepted by the Crown that the leading of evidence of the interviews which had been conducted by the police without the appellant having an opportunity to obtain legal advice constituted a breach of the appellant's right, under Article 6 ECHR, to have such an opportunity to obtain legal advice. The Crown accepted that the evidence of the questioning of the appellant by the police was inadmissible and the issue here was whether without the evidence of the interviews "…there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them" (McInnes v HMA [2010] UKSC 7). Here the court considered the part the evidence of the interviews played in the trial, for example, the extent to which the evidence was referred to in the prosecutor's speech to the jury in determining whether had the interviews not been before the jury and available to the prosecutor for the use which he made of them, there was a real possibility that the jury would have arrived at a different verdict. The court also considered the issue of the deletion of the word "repeatedly" and the contention advanced on behalf of the appellant that the verdict was irrational and a breach of Article 6 ECHR having regard to the evidence of the complainer who spoke of two distance rapes (in the living room and the bedroom) whilst the appellant accepted one consensual act of sex in the living room but denied having sex in the bedroom meaning that one or other of the two complaints of rape as stated by the complainer was found by the jury not to have been established but there was no way of knowing which.