Hugh Mullen v HMA [2011] HCJAC 55

Another appeal to the High Court post Cadder, this time in connection with admissions made voluntarily when the accused had been charged but where he asked to speak to an officer.

The decision of the court comprising the Lord Justice Clerk, and Lords Emslie and Brodie can be found at http://www.scotcourts.gov.uk/opinions/2011HCJAC55.html.

The appellant was convicted, along with his brother, of a brutal attack amounting to attempted murder, assault to severe injury and permanent disfigurement and of robbery.

Having been detained and subsequently arrested, the appellant who was then in a police cell, asked to speak to one of the investigating officers. He then made certain admissions.

When formally interviewed regarding thew matter, and the admission, he denied having made it, and denied involvement in the attack.

The ring stolen from the victim was found in the toilet in the appellant’s cell.

He was convicted with his brother after trial and appealed.

The ground of appeal was that the evidence of the admission allegedly made by him in his cell was led by the Crown in breach of the his article 6 rights. The admission, if made, was made when the appellant had not had access to legal advice. The evidence of it was, or should have been, inadmissible. There was a miscarriage of justice.

The Crown conceded, rather to the surprise of the court, that the admission was governed by the Cadder principles, but there was, in any event, more than sufficient other evidence, excluding the admission, for the conviction to be sound.

However, the court not being bound to accept the Crown’s concession, declined to do so. The Lord Justice Clerk said “in Cadder a clear distinction was drawn between the position of a detainee who is being interviewed by the police and that of a detainee before any interview takes place . In my opinion, the Cadder principle has no application where, as in this case, the suspect elects to speak to the police before he is interviewed. In such a case his statement is not elicited by interrogation”.

In any event the evidence against the appellant was found to be overwhelming and the appeal was refused.

Lords Emslie and Brodie concurred.

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