Ambrose v Harris (Procurator Fiscal)

JurisdictionScotland
JudgeLORD HOPE,LORD BROWN,LORD DYSON,LORD MATTHEW CLARKE,LORD KERR
Judgment Date06 October 2011
Neutral Citation[2011] UKSC 43
CourtSupreme Court (Scotland)
Docket NumberNo 3
Date06 October 2011
Reference—Ambrose
and
Harris (Procurator Fiscal, Oban) (Scotland)
Reference—Her Majesty's Advocate
and
G (Scotland)
Reference—Her Majesty's Advocate
and
M (Scotland)

[2011] UKSC 43

before

Lord Hope, Deputy President

Lord Brown

Lord Kerr

Lord Dyson

Lord Matthew Clarke

THE SUPREME COURT

Michaelmas Term

Appellant

Frank Mulholland QC,

Lord Advocate

Gordon Balfour

(Instructed by the Crown Agent, Crown Office)

Respondent (Ambrose)

John Dominic Scott

Andrew Mason

(Instructed by DM MacKinnon Solicitors)

Appellant

Frank Mulholland QC,

Lord Advocate

Gordon Balfour

(Instructed by the Crown Agent, Crown Office)

Respondent (G)

Gordon Jackson QC

Claire Madison Mitchell

(Instructed by Paterson Bell)

Appellant

Frank Mulholland QC,

Lord Advocate

Gordon Balfour

(Instructed by the Crown Agent, Crown Office)

Respondent (M)

Christopher Shead

Moira MacKenzie

(Instructed by G Keenan & Co)

Heard on 28, 29 and 30 June 2011

LORD HOPE
1

On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crown's reliance on admissions made by an accused without legal advice when detained under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on the evidence of the appellant's interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63.

2

The evidence that was in question in Cadder had been obtained when the appellant was being questioned while in detention at a police station. The applicant in Salduz too had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate. But the facts of those cases by no means exhaust the situations in which the prosecution may seek to rely on answers to questions that have been put to the accused by the police. The Court now has before it four references by judges of the High Court of Justiciary which have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. Common to them all is the fact that incriminating answers were given to questions put by the police when the accused did not have access to legal advice. In three of them the evidence that is objected to was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act. They can be grouped together and are the subject of this judgment. The fourth is concerned with the question whether the ratio of the decision in Salduz extends to lines of enquiry to which the accused's answers to questions while in detention have given rise. That reference is dealt with in a separate judgment: P v HM Advocate [2011] UKSC 44.

3

The issues that the first three references raise are (1) whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and (2) if the rule applies at some earlier stage, from what moment does it apply. The first reference is of a case which is the subject of an appeal against conviction. The second is of a case which is before the Appeal Court in an appeal against a ruling by a sheriff on the admissibility of evidence. The third is of case which is the subject of a devolution minute which was referred by the trial judge to the Appeal Court under paragraph 9 of Schedule 6 to the Scotland Act 1998. The cases that are the subject of the second and third references that havenot yet gone to trial, so the names of the parties involved have been anonymised. In each case the reference has been made by the Appeal Court at the request of the Lord Advocate.

The first reference
4

The appellant in the first case, John Paul Ambrose, was prosecuted on summary complaint at Oban Sheriff Court on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle whilst having consumed a level of alcohol in excess of the prescribed limit. He had been found by two police officers sitting in the passenger seat of a car parked by the roadside. A female was sitting in the driver's seat. A member of the public had expressed concerns to the police about them because they were thought to be drunk. As there was vomit beside the driver's door and the female was seen to be upset, the police officers decided to speak to the appellant. Having formed the view that he had been drinking, one of the police officers cautioned the appellant but did not give him any specification about the offence which he was suspected of having committed. The appellant made no reply when cautioned. He was then asked three questions, to which he gave answers, by the police. They were as follows:

"Q—Where are the keys for the vehicle?

A—In my pocket.

Q—Do you drive the car?

A—Yes.

Q—Are you going to drive the car?

A—Ah, well she wisnae well or Aye, well she wisnae well."

The appellant then removed the car keys from his trouser pocket. He was asked whether he had anything to drink in the last 20 minutes and replied that he had not. He was then given a roadside breath test which he failed. He was taken to Oban police station where he gave a breath/alcohol reading that was well in excess of the prescribed limit.

5

The appellant pled not guilty to the complaint. He went to trial before a Sheriff on 31 May 2001 and 2 July 2010. The evidence of the questions and answers was led without objection from his solicitor. After the Crown had closed its case the appellant's solicitor challenged the admissibility of this evidence on the ground that the police had not informed the appellant of the offence of which he was suspected before he was questioned. The sheriff repelled this submission. After hearing evidence from the appellant and a defence witness, he found the appellant guilty. He was fined £375, was disqualified from driving for two years and had his licence endorsed. The appellant then lodged an appeal against his conviction. Among the grounds on which he applied for a stated case was the submission that the act of the Lord Advocate in seeking a conviction in reliance on the evidence of the police interview was incompatible with his right to a fair trial under article 6(1). Leave to appeal having been refused at the first sift, he appealed to the second sift and then lodged a devolution minute in which it was stated that for the Lord Advocate to support the conviction would be incompatible with his rights under article 6(1) and article 6(3)(c). In a note which he lodged on 12 October 2010 in support of the appeal he submitted, with reference to the decision in Salduz, that the use of the evidence of the interview was unfair as he did not have access to legal representation before or during the police interview. On 3 November 2010 leave to appeal was granted at the second sift.

6

Following a procedural hearing on 26 January 2011 and at the request of the Lord Advocate, the Appeal Court referred the following question to this court:

"Whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning of the appellant conducted under common law caution at the roadside and without the appellant having had access to legal advice was incompatible with the appellant's rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights, having regard in particular to the decision of the Supreme Court of the United Kingdom in Cadder v HM Advocate 2010 SLT 1125."

The second reference
7

The accused in the second case, referred to as M, has been indicted in the sheriff court on a charge of assault to severe injury, permanent disfigurement and permanent impairment. Shortly after the assault took place on 30 August 2008, in the course of initial inquiries, the police took the accused's details from him but allowed him to leave the locus. On 4 September 2008 however he was traced to his home address where, after administering a common law caution to the effect that he was not required to say anything but that anything he did say might be used inevidence, a police officer asked a total of seven questions, each of which was answered by the accused. They were as follows:

"Q—I am investigating a serious assault which happened on Saturday night there, within a bar named [X]. There was a large disturbance in there too. Were you there?

A—Yes, aye.

Q—Were you involved in the fight?

A—Aye.

Q—Who were you with?

A—My dad and just boys fae [Y] where I used to work.

Q—Were they involved too?

A—I think so, the other boys started it. I got punched a couple of times on the eyebrow. It's still sair.

Q—OK, what were you wearing?

A—Pale blue t-shirt, jeans, trainers.

Q—OK [M], I will stop there. I need to speak to you further except it will be recorded in a taped interview format. Can you be at [Z] Police Office tomorrow night at 8 pm?

A—Yes.

Q—I need to take your t-shirt you had on, is that OK?

A—Aye."

At this point the police officer concluded his questions because he felt that it had become obvious that the accused had some involvement on the incident and that it was not appropriate to carry out an interview there. The accused attended the police office the next day. He was then detained and interviewed under section 14 of the 1995 Act, in the course of which he made further admissions.

8

The accused was indicted for trial, and after sundry procedure he lodged a minute raising the issue whether the Crown had power to lead evidence of the admissions which he had made. When the minute was argued before the sheriff on 9...

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