Taped interview admissible for voice ID
22 Apr 05
Appeal court allows use of detainee's statement under caution as legally obtained evidence
A conviction of racial harassment by making threatening phone calls has been upheld by the appeal court, despite a challenge to the evidence supporting the voice identification of the accused.
Colin McIntyre had been found guilty of pursuing a racially aggravated course of conduct against a Cumbernauld man by uttering racial remarks and threatening violence in two phone calls which were recorded by the police. The complainer had identified McIntyre as the caller by his voice, and the Crown supported this with expert evidence that the accused's voice as recorded in a police interview while he was detained, was the same voice as previously recorded.
McIntyre complained that the evidence of the tape was unfairly admitted, because although he had been given the standard caution that any answers he gave might be used in evidence, he had not been warned that the recording might be analysed in this way. The police had not intended that it would, and the Crown had acted unfairly in using it for this purpose.
Speaking for the court, Lord Macfadyen, who sat along with Lord Justice General Cullen and Lord Carloway, rejected the Crown's argument that the caution given was a sufficient warning that a suspect's answers might be used in this way. "In our view the only natural meaning of the common law caution is that the substance or content of the interviewee's answers, if wholly or partly incriminating, may be used in evidence against him. We do not think that it conveys more than that."
However, the court said, the question was the fairness of the procedure as a whole. The recording had been lawfully obtained and formed a legitimate part of the investigation. "The recording was, in our view," said the court, "in no different a position from any other evidence legitimately obtained by the police and passed, in due course, to the prosecuting authorities." And because it could be treated as an objective, rather than a disguised, sample of McIntyre's voice, there was a clear public interest that it be available for analysis and comparison.
The court also refused to allow new evidence that the voice was that of the accused's incriminee Alan Burns, who had failed to obey a witness citation to the trial - the defence had known of the importance of the evidence and had made a tactical decision not to seek a further adjournment of a trial that had already been much postponed.
The court's opinion can be read at http://www.scotcourts.gov.uk/opinions/2005HCJAC50.html .