APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Philip	[2014] HCJAC 64 XC509/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION   by   EDWARD FLYNN, Appellant;   against   HER MAJESTY’S ADVOCATE, Respondent:   _______________

 

Act:  A Ogg, Solicitor Advocate; McCusker, McElroy & Gallanagh, Johnstone

Alt:  I McSporran AD; the Crown Agent

 

 

5 June 2014

Introduction
[1]        On 23 July 2012, at the High Court in Glasgow, the appellant was convicted of the rape of the complainer on 3 May 2011, at an address in Mauchline “whilst she was under the influence of alcohol and incapable of giving or withholding consent”.  He was sentenced to 6 years imprisonment.

[2]        Leave to appeal was granted in respect of two grounds.  The first of these is that the Crown failed: (a) to conduct a toxicological analysis of blood and urine samples taken from the complainer “shortly after the commission of the offence”; and (b) to disclose timeously the existence and availability of the samples and their previous enquiries concerning a possible analysis.  It is said that the analysis would have disclosed the complainer’s blood/urine:alcohol level and enabled a back calculation to be done to establish the level at the time of the commission of the offence. 

[3]        The second ground is one which is based upon “fresh evidence”, notably the results of a toxicological analysis carried out in respect of the blood samples.  These analyses, which were carried out in January and March 2013, gave negative results for alcohol.  It is said that the results are significant, important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or material part to play in, the jury’s determination of critical issues at the trial, notably whether the complainer was under the influence of alcohol and thereby incapable of giving or withholding consent.  It is averred that there is a reasonable explanation why evidence of the results of the analyses was not heard at the trial diet.  This is said to be that the police and the Crown did not disclose the Archway, sexual assault referral centre, Adult Forensic Examination pro forma report, which listed the items (including the blood and urine samples) taken from the complainer, until 25 January 2012.  When the defence had queried whether there had been any analysis, they were advised by the Crown that the forensic scientists had told the reporting police officer that there were inadequate details to enable a back calculation to be carried out. 

[4]        Although the two grounds of appeal appear to be intimately connected with each other, at a procedural hearing on 26 February 2014, the court assigned this diet of appeal specifically to consider whether the reasonable explanation test in relation to fresh evidence had been met.  It ordained the appellant to lodge any productions, affidavits or other material to be used at that hearing.  The grounds of appeal were then effectively split into two, with this court concerned only with the reasonable explanation test and not with any other of the required elements for a successful “fresh evidence” appeal, such as the materiality of that evidence.  It is reasonable to comment that neither party at the appeal hearing was able to provide a satisfactory explanation as to why it was thought desirable to divide the appeal into separate parts. 

 

Sequence of events
[5]        It is necessary to set out in some detail the history of the blood and urine samples in order to determine whether a reasonable explanation has been given as to why evidence of blood:alcohol or urine:alcohol levels were not presented at the original trial.  What appears to be broadly agreed is that the events leading up to the alleged rape commenced on the evening of 2 May 2011 when the complainer, then aged 17, in pursuance of a late change of plan, had gone to the flat of her friend KF’s uncle, namely the appellant, along with KF and two other friends, KW and AM, with a view to having a few drinks.  They arrived at the flat sometime before 7.00pm and thereafter consumed quantities of vodka and coke and Buckfast.  There is evidence, which does not appear to be seriously in dispute, that the complainer and AM walked KW home sometime around 9.30pm.  After their return to the appellant’s flat, there was further consumption of alcohol by a number of people all of whom, with the exception of the complainer, KF and the appellant, left about 11.00pm. 

[6]        It is sufficient for the purposes of this part of the appeal to observe that the complainer’s contention was that by at least 11.00pm she was significantly under the influence of alcohol.  She had reached the stage where the room was spinning and she had to be sick.  She had been escorted from the bathroom, where she had been lying on the floor, and put to bed with a basin beside her in case she was sick.  She had come to with the appellant having sexual intercourse with her in bed.  The degree, to which the complainer’s version of her intoxication was supported by other witnesses, was variable.  There was certainly ample evidence from some of the witnesses that she was in a state of drunkenness, but others said that she was “fine” and not giving any cause for concern. 

[7]        As is not uncommon in fresh evidence appeals where there is a requirement that there be a reasonable explanation for evidence not being heard, the court was not provided with any contemporaneous written material about what the appellant’s instructions to his legal advisers actually were and, in particular, what his position was on the complainer’s state of intoxication.  However, it was said that the content of the police interview of the appellant accurately reflected these instructions and the court will proceed on that basis. 

[8]        The appellant was interviewed in the early hours of 4 May 2011.  His account was that what had happened was “fully consensual”.  However, he accepted that the complainer had had a drink, along with everyone else, and that she had gone to the toilet because she had been feeling dizzy.  Although the appellant said that he had been invited to go to bed by the complainer, he also accepted that he had put a bucket beside the bed, presumably because it was anticipated that the complainer might be sick.  He also accepted that she had fallen over at some point before reaching the bed.  Specifically in relation to her state of intoxication, at one point in his interview the appellant said that the complainer was not intoxicated, but at another that he did not know about her state other than that she was not as drunk as he had been.  He had maintained that he had drunk up to two bottles of vodka.  It is perhaps not unreasonable to conclude that the appellant’s position was that, although the complainer was in a state of considerable intoxication in the sense of being dizzy, falling over and about to be sick, she was not so intoxicated as not to be able to consent to sexual intercourse. 

[9]        The complainer had gone home after the incident, although the time of this does not appear to have been explored at the trial.  The only clue in the papers as to when the incident occurred is contained in the Archway report, which contains a history taken from one of the police officers (DC Morrison) who had first interviewed the complainer.  This states that the complainer was unsure of the time of the incident, but that it was “probably about 12.00-12.20am”.  The complainer had gone to school the next morning, but had reported the incident to her guidance teacher and the police were contacted.  The police appear to have become aware of the allegation by about 9.30am and arrangements were made to take the complainer to the Archway centre for examination.  This commenced at about 13.50 and it is recorded by the police that a urine sample was taken at that time and blood samples “for toxicology” at 14.25. 

[10]      On 2 June 2011, the Crown disclosed a number of witness statements to the defence, including a statement of DC Morrison, which clearly referred to the taking of the samples and the times when these were taken.  At the same time, the procurator fiscal contacted the police asking them to enquire of the forensic scientists whether the urine sample could be analysed to discover how much alcohol had been in the complainer’s system at the time of the offence.  It is the Crown’s position that the forensic scientists had stated that such an exercise could not be carried out.

[11]      On 25 January 2012, the Archway report (42 pages) was disclosed to the defence and it, once more, clearly showed that urine and blood samples had been taken on 3 May 2011.  On 16 March 2012, the appellant consulted with counsel and one of the matters discussed was the Archway report.  Counsel requested that any toxicology report should be obtained.  On 20 March the appellant’s agents wrote accordingly to the procurator fiscal requesting a copy of any such report.  The reply, which is dated the same day, was as follows:

“Also there are no toxicology reports as the reporting officer made contact with the toxicologists who stated that there are not adequate details in order for them to do a back calculation for the sample in order to ascertain how much the complainer had to drink that night.”

 

[12]      A copy of this letter was sent to counsel who was then asked specifically if he wanted agents to do anything about its content (see affidavit of agent, para 6).  According to counsel, he did not specifically recall seeing the procurator fiscal’s response, but he accepts that he was asked whether any further enquiry should be made in light of the content of that letter which he must therefore obviously have seen.  He decided that no further investigation was required (affidavit of counsel, para 5).  Counsel reports as follows:

“My reaction to (the Crown’s letter) must have been that it was suggesting that the Crown forensic scientists had indicated that it was not scientifically possible to perform a back calculation.  Based upon the information in the letter, I would take the view that it would therefore be pointless for the defence to investigate toxicology any further.  I would not have made use of public money by requesting investigation into a back calculation at that time as I take the letter to mean that such a procedure was not possible in this case.  I would have taken that view based on the information contained in the letter and I would have relied upon the truthfulness of the information contained in that letter.”

 

[13]      It is to be noted that counsel was particularly experienced in criminal cases and sexual offences cases in particular.  Indeed, he was the assistant principal advocate depute and head of the National Sexual Crimes Unit for several years before leaving the Crown Office and returning to defence work.  He would have been fully aware of matters such as back calculations in relation to blood/urine:alcohol levels.  As he comments, toxicological analysis can be pointless where there has been a significant passage of time since the taking of the sample as any back calculation would have such a huge margin of error that it could not be relied upon.  He continues:

“8        I have been asked why, notwithstanding the letter from the Crown dated 21 March 2013 (sic), I did not instruct toxicological analysis in this case.  A tactical judgment would go against a survey to see if any alcohol was present.  If there was any at all, then even the most conservative back calculation would indicate a level of alcohol that pointed to the complainer being intoxicated at the relevant time.  She was 16 (sic).  If the result had been negative, it would be meaningless evidentially since it would be neutral on the fact in issue.  Eye witness testimony all indicated she had drunk so much she needed assistance to go to bed.  The accused said he put a basin by her bed in case she was sick.  A negative calculation could not negative she was intoxicated in the face of the evidence that she was.”

 

Post trial investigations
[14]      On 30 January 2013, some six months after the conviction, analysis of the first of two blood samples was carried out on the instructions of the appellant.  This produced a negative result for alcohol.  This prompted the appellant’s agents to seek clarification from the procurator fiscal about what had been meant in the earlier letter of 20 March 2012, to the effect that there were inadequate details to carry out a back calculation.  An immediate reply from the procurator fiscal dated 19 February 2013, states:

“… we contacted the reporting officer on 2 June 2011 asking that she make contact with the toxicologist to enquire whether a urine sample taken from the complainer could be analysed to discover how much alcohol was in her system at the time of the offences.  By the time the reporting officer carried out this request, the toxicology unit stated that the analysis could not be carried out.”

 

[15]      The amended toxicology report dated 19 February 2014, from the University of Glasgow’s Forensic Medicine and Science section, states that it is recommended that blood samples are submitted for analysis within 5 working days from collection in order to reduce the likelihood of degradation.  Due to the delay in this case, it is likely that the concentration of alcohol in the blood sample was higher at the time of collection.  A report, from a forensic pharmacologist from the University, comments that forward and back calculations of alcohol blood concentrations are relatively straightforward as alcohol clears from the body at a constant rate under most circumstances; that rate being 18mgs of alcohol in 100mls of blood per hour (although the range is between 9 and 29).  Only one “non zero” analysis of blood at a particular time is needed to allow a range of possible blood alcohol concentrations to be calculated in relation to another time.  However:

“It is not possible to back calculate blood alcohol concentrations from a zero alcohol reading as it is not known when the value reached zero …”.

 

[16]      The pharmacologist continues by observing that, given that the blood was said to have been collected some 12 to 14 hours after the alleged offence, it can be calculated that at the time of the offence the complainer’s blood alcohol concentration could have been an average of “208 (within a range of 121 and 391) mgs per 100mls of blood”.  It is said that the values could be significantly lower, depending on when the blood alcohol concentration actually reached zero.  However, the pharmacologist concludes:

“Given the above and taking into account the very significant assumptions made, it is my opinion that the complainer … could have been so intoxicated with alcohol at the time of the alleged offence … as to be incapable of giving or withholding consent but still have an unmeasurable blood alcohol concentration at 14:25 hours on the same day, although this is by no means certain”.

 

Submissions
[17]      The court struggled to follow the submission being made in relation to reasonable explanation.  It appears, especially from the written case and argument, to be that there was a reasonable explanation for the defence not instructing an analysis of the samples because agents had been told by the Crown that the forensic scientists had told the police that they did not consider that a back calculation was possible because of inadequate details.  The defence had not been told what the inadequacies were, or that the samples remained available for testing.  It was accepted that counsel had made a tactical decision not to instruct an analysis but that decision had been “wrong”.  That was the reasonable explanation for not instructing an analysis and leading evidence of its results.

 

Decision
[18]      Section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 permits a person to appeal against conviction on the basis of an alleged miscarriage of justice based upon “the existence and significance of evidence which was not heard at the original proceedings”.  However, in terms of subsection 3A, such evidence may found an appeal only where there is a reasonable explanation as to why it was not so heard.  In Campbell v HM Advocate 1998 SCCR 214, the Lord Justice Clerk (Cullen) said:

“an explanation cannot be a ‘reasonable explanation’ if it is not adequate to account for the fact that the witness’s evidence was not heard.  This in a case where the defence make a deliberate decision not to lead a witness at the trial for technical (sic) reasons, it is difficult to see how this could provide a ‘reasonable explanation’, when it was sought at the stage of appeal to lead the evidence which could have been led at the trial. It would not be enough to say that at the trial the appellants’ advisers were of a different mind. … it would be difficult, if not impossible, for evidence to be admitted at the stage of an appeal if a tactical decision was taken not to adduce it at the trial”.

 

[19]      This is a straightforward case in which the defence was aware, from a relatively early pre-trial stage, that blood and urine samples had been taken from the complainer when she had been medically examined at the Archway centre.  They had no reason to suppose that the samples had been destroyed.  They were aware that the Crown had elected not to test the samples and that the reason for that decision was because the forensic scientists had said, at least in relation to the urine sample, that a back calculation could not be carried out.  The reason for this appears to be because of the time which had elapsed between the incident and the taking of the samples.  This was a period of at least 14 hours and an even greater span from the point, which is uncertain, at which the complainer had stopped drinking.

[20]      It was a matter for the defence to decide whether to carry out their own tests. They were under no obligation to accept the reason given by the Crown for not doing so. Clearly it would have been possible to test the samples.  The analysis might have produced a positive or a negative result.  A positive result would have been extremely damaging to the appellant’s case, as that would have inevitably meant that the complainer must have had an extremely high blood:alcohol ratio at the time of the incident, thus undermining the appellant’s position.  Alternatively, it would have produced (as it ultimately did) a negative result which, for the reasons given by the appellant’s expert pharmacologist, would establish nothing other than that the complainer had no alcohol in her system some 14 hours after the incident.  However, for the same reasons, by the time of the incident she could well still have had ingested an amount of alcohol which, for a 17 year old female, would have made her incapable of reaching a free agreement about sexual intimacy.  The decision taken by an extremely experienced senior counsel not to pursue this line of enquiry appears to have been entirely correct.  However, even if it had not been, there is still no reasonable explanation for not having led such evidence at the trial.  If a deliberate decision is taken not to lead evidence of a particular fact at a trial, such evidence, produced after trial, can hardly be regarded as “fresh” (see Johnstone v HM Advocate [2013] HCJAC 92, LJC (Carloway), delivering the Opinion of the Court, at para [57]).

[21]      This appeal is accordingly refused in so far as ground 2 (fresh evidence) is concerned.