Davy, you have been charged with an offensive behavior covered under section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (the Act). This report is going to assess the likelihood of your conviction based on the facts provided earlier.
Based on CCTV evidence (no other evidence have not been mentioned by you) you had been charged under section 1 (2) (a) (i) or (ii) of the Act. Despite the fact that each case on admissibility of unfairly obtained evidence will depend on individual circumstances; there is said to be 3 stages of investigation and admissibility will depend upon which the investigation is at:
Before police, suspicion has focused on the accused. Any of the evidence obtained at this stage is admissible.
While the accused is detained on suspicion. This stage includes cases where the accused is accompanied by the police voluntarily in response to a request. Generally speaking, any evidence obtained at this stage is considered to be admissible. However, it is a subject to a number of condition discussed later.
The third stage is where the accused has been charged. A reply to charge at this stage will be regarded as admissible. However, in case such where further questioning was conducted, any response would be inadmissible.
Based on the facts, the investigation is likely to be at stage two. This is because the suspicion against you had been seriously investigated and you are centered as the likely perpetrator of the crime based on the fact you had been identified on the CCTV footage. It is likely that the officers were trying to obtain more information about the events which took place during the match. Now, I would like to go through the issues that are drawn from the materials which had been received.
Firstly, I would like to go through the statement given by you prior the interview. Your statement to the police was, “What if I was?” I subscribe to the view that the statement you had made is not incriminating. In practice statements which are more incriminating than yours are found to be neutral. However, it still may be admissible though a judge would have to point to the jury that they cannot draw an inference of guilt from your statement.
Secondly, I would like to go through the conditions where evidence obtained at stage two would be considered as inadmissible. Police officers who have interviewed you failed to notify about the common law caution. The caution should have warned you that: there is no obligation for you to say anything, and that anything you say may be recorded and later used as evidence against you. Even in a case where the caution was said, it had to be understood by you. So, taking into the account your learning disability, and the fact that you have mentioned to police officers about it, I submit to the view that the evidence obtained from you would be rendered inadmissible based on unfairness.
However, to establish that you have a learning disability and during, the interview you had issues with understanding the police officers, there needs to be more information provided as to the nature of the disability and whether it was properly diagnosed. So, in a case where the accused was properly diagnosed with a learning disability, but police officers were not aware of that, evidence obtained from the accused would be rendered as inadmissible. Now though, there is a statutory regime in place in order to assess the mental capability of the accused. The issue of learning disability is also relevant to the fact that police officers ignored your statement. Assuming that you were properly diagnosed, you would be entitled to have an advisor, provided under Appropriate Adult Scheme, who would assist you during the interview. Thus summarizing the main points:
Due to the fact that common law caution was not mentioned to you, it would render evidence inadmissible.
Where the common law caution was raised, the evidence obtained would still be inadmissible due to the fact that you were unable to understand it.
In a case where you have properly diagnosed learning difficulty, the statements obtained from you would be inadmissible.
Thirdly, I would like to assess the fact that you did not have access to a solicitor. It has been recognized that under the Article 6(1), there is a requirement to have an access to solicitor and it should be provided from the first interrogation of a suspect by the police unless there are compelling reasons to restrict this right. The prosecutor cannot rely upon nor lead any evidence which had been obtained in breach of this rule. However, this rule would not apply to the statements made outside the interview thus suggesting that your statement made prior to the interview would remain to be admissible. Taking into the account that you had been detained for questioning, you also have a statutory right to have a private consultation with your solicitor before any questioning began. I must notify you about the fact that in cases of exceptional circumstances constable may delay the exercise of your right in so far it is necessary for the interest of investigation and prevention of crime.
The proper conduct of policemen would be to notify you about your right as soon as you arrived at the police station. Based on facts provided, the police officers did not inform you about your right and made a mere offer to access a solicitor, only after half an hour from the start of the interview. In addition, if the court will consider a mere offer to be sufficient as informing you about your rights, there was no voluntary, informed or unequivocal refuse by you in order to disregard your right. Based on the facts provided, there seems to be no pressure as to a refusal to consult your lawyer. Furthermore, you had not been informed about your rights regarding a solicitor and it is doubtful whether a mere question, “Why would I want to do that,” will be sufficient enough to be viewed as a clear refusal to consult a solicitor. However, Davy, I would need more information on whether you have signed a waiver because if you did sign, it could suggest that you were properly informed of your rights and you refused to consult a solicitor. However, even in a case, you did sign something, you were not clearly informed about your rights suggesting your waiver would be considered as invalid. In sum, I submit to the following:
Davy, you were not informed about your rights to consult your solicitor as it is required by statutory authority which would likely result in,
The court would make the evidence obtained from during the interview inadmissible due to unfairness.
The fourth issue is the manner in which you had been questioned. It is commonly said that confessions obtained by way of “cross-examination” are inadmissible. In this context, “cross-examination” refers to cases where there was “improper forms of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will.” In order of a confession to be admissible, it has to be given freely.
From the facts provided, we know that the police-officer has repeatedly asked you questions as regards to what happened during the match. Repeated questions are considered to be inadmissible. So, looking by looking into the facts provided, I suspect that the court is likely to consider such questioning unfair; thus making the confession inadmissible. It would be easier to establish the inadmissibility of the confession if there was further information provided as to how many times the officers have repeatedly asked the same question due to the fact that in the cited authority, the question was repeated at least 19 times. Furthermore, I would need further details on how long the interview was as, in the majority of the cases, the interviews continued for a reasonably long period of time.
There are also other issues relevant issues which could be taken into the account. Firstly, whether what was the exact meaning of the phrase, “Would be worse for you in the end.” In a case where this phrase implied a threat of depravation of liberty, then it would also amount to inadmissibility of your confession. Secondly, coming back to the issue of your learning disability it may also render the confession inadmissible.
I would like to move onto your actual statement. You have said, “OK, I was at the stadium just leave me alone now.” This phrase could be interpreted in the way that you had been broken by the pressure made upon you by the police officer, thus making the confession inadmissible due to unfairness. In addition, the wording you have used is likely to be considered as neutral and would not be considered as incriminating. Thus, summarizing this point:
From the facts provided, it seems that your confession was done under pressure and it was not done freely:
There was a repetition of the same question;
Possibly an implied threat of deprivation of liberty;
Ignorance of your learning disability, which could possibly amount to the fact that you did not understand the allegations made and;
Submission to the pressure made by police officers.
Thus taking everything into the account, it would be likely the court would make evidence inadmissible based on unfairness.
In my last point, I would like to go through sufficiency of the evidence upon which you had been interviewed, because it seems so far that police has insufficient evidence.
Crucial facts (facta probanda) are the facts upon which in a criminal cause the accused’s guilt is established. In criminal cases, crucial facts require full legal proof. In order to establish full legal proof, evidence must come from two separate sources unless a statute provides differently. As in regards with two separate sources it may be either: direct evidence of two witnesses, or two or more evidential facts spoken to by separate witnesses from which a crucial fact is inferred, or of a combination of direct evidence of one witness and of one or more evidential facts spoken to by other witnesses which support it. The key issue is that direct evidence of a single witness does not become sufficient proof of a crucial fact because the witness is not crosse examined.
So far, we had been offered with one piece of evidence, which is a CCTV recording. According to Lord Carloway, it would still need to be proven by two witnesses as a CCTV recording is not a source of evidence. In practice, it is shown that if for example, three police officers watched a CCTV recording it may be regarded as sufficient evidence. However, in that particular example there was an attempted murder thus making it different from our situation. So far, there is no evidence as to whether your song had expressed hatred or stirred up hatred as it is required by the Act. However, gestures may be considered as offensive in the context of whole circumstances. Furthermore, gestures may be regarded as behavior which would likely to cause public disorder and thus there are doubts as to a success of submission of no case to answer.
In conclusion of the report, I would like to summarize some of the issues. Firstly, in regards to the interview in the police station, it would be very likely that the court will find evidence inadmissible as there were many issues with the whole procedure. Secondly, so far there is seems to be lack of evidence as to the context of a song, but the court may consider that your gestures were sufficient enough to cause public disorder given the context of a match. Based on this fact, there is a higher possibility of conviction, but I would need further details as to the nature of songs and gestures made by you in order to assess the likelihood of conviction.