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Undisputed admission against rape conviction review on Cadder grounds: UKSC

22 March 2017

A convicted rapist whose police interview was not conducted with the safeguards later required by the Cadder decision, but who did not dispute the truth of what he told the police, has failed on final appeal in his attempt to overturn a refusal to refer his case back to the Criminal Appeal Court.

Five judges of the UK Supreme Court unanimously dismissed an appeal by Graham Gordon, who sought judicial review of the refusal by the Scottish Criminal Cases Review Commission to refer his case to the Appeal Court for a review of his conviction.

The events in question took place in 2001. Following a woman's complaint that Mr Gordon had raped her, he was interviewed by the police. In accordance with practice at the time, no solicitor was present. He admitted intercourse but claimed it had been consensual. Due to his admission, semen found on the complainer was not subjected to DNA analysis. He did not give evidence at trial, relying on what was said in his statement, but was convicted and sentenced to five years' imprisonment.

Mr Gordon was unsuccessful with an appeal, and in attempting to have his case referred by the SCCRC, but after the 2010 decision in Cadder that suspects had to have access to legal advice before and during police questioning, he made a further application to the SCCRC. This was refused on the basis that while the Crown's reliance on the evidence might have led to a miscarriage of justice, it was not in the interests of justice for a reference to be made, given the time that had passed since conviction, and that Mr Gordon did not dispute the veracity of the interview or the fairness of the manner in which it had been conducted, and had relied on it at trial. His application for judicial review of this decision was refused by the Lord Ordinary, a ruling upheld by an Extra Division.

Refusing his further appeal, Lord Reed, with whom Lord Kerr, Lord Clarke, Lord Hughes and Lord Hodge agreed, said the courts below were correct to conclude that the SCCRC did not err in law in any of the ways suggested.

It was right to take into account the fact that the appellant had not disputed the veracity of what he had told the police in the interview. That was plainly relevant to whether it was in the interests of justice to make a reference. It would not normally be in the interests of justice to quash a conviction merely because, under the law as now understood, there was a lack of admissible corroboration of a fact which had never been in dispute.

While it was a relevant consideration that if the appellant had been offered the opportunity to consult a solicitor, matters might have taken a different course, and the interview might not have provided the necessary corroboration that sexual intercourse had occurred, it was also relevant that it was because of the answers given at interview, and the admissibility of those answers under the law at the time, that the semen found on the swabs was not submitted to examination, so as potentially to provide other corroborative evidence. That did not however detract from the relevance of the undisputed admission.

The SCCRC was also correct to take into account the fact that the appellant had not challenged the fairness of the way in which the interview had been conducted or its use at the trial, on any of the grounds that were recognised prior to Cadder, and that he had relied on the interview in order to present his defence to the jury. The court did not accept his argument that this course of action had been forced on him, as the fact that the whoile interview had been before the jury enabled the appellant to present his defence without being subject to cross examination.

The SCCRC's approach to the “interests of justice” test was not inconsistent with the case law regarding the corresponding test which applied to the High Court, as that court regarded the role of each body as different.

Click here to access the judgment.

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