Duncan Maclean V. Her Majesty's Advocate

JurisdictionScotland
CourtHigh Court of Justiciary
JudgeLord Wheatley,Lord Eassie,Lord Osborne,Lord Justice Clerk,Lady Paton,Lord Kingarth,Lord Justice General
Judgment Date2009
Neutral Citation[2009] HCJAC 97
Docket NumberXC286/09
Date22 October 2009
Published date15 December 2009

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Justice Clerk

Lord Osborne

Lord Kingarth

Lord Eassie

Lord Wheatley

Lady Paton

[2009] HCJAC 97 Appeal No: XC286/09

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

in

REFERENCE BY THE SHERIFF AT TAYSIDE CENTRAL AND FIFE AT FORFAR

in the cause

HER MAJESTY'S ADVOCATE

Respondent;

against

DUNCAN McLEAN

Minuter:

_______

Respondent: W J Wolffe, Q.C., A.D., S Collins; Crown Agent

Respondent: Advocate General, E Creally; Office of Advocate General

Minuter: C Shead, J MacDonald; Drummond Miller WS

22 October 2009

Introduction

[1] The minuter, who was born on 22 November 1988, has been charged on indictment in the Sheriff Court at Forfar with theft of a motor vehicle and wilful fire-raising. The offences are alleged to have been committed between late on Sunday 20 July and early on Monday 21 July 2008. In the early hours of 23 July police officers investigating these incidents detained the minuter under section 14 of the Criminal Procedure (Scotland) Act 1995. He was taken to Arbroath Police Station where, between 0417 and 0502 hours, he was interviewed under caution by police officers in connection with these incidents. The interview was recorded on tape and was videoed. The minuter was not, prior to the interview, offered an opportunity to have legal advice nor was a legal representative present while he was being interviewed. He did not request such advice or representation. He had requested, as he was entitled to do (1995 Act, section 15(1)), that intimation be made to a named solicitor of the fact and place of his detention. This was done about 0303 hours by leaving a message on that solicitor's firm's telephone answering machine. He did not request intimation to be made to any other person. In the course of the interview he made a number of admissions upon which the Crown intends to rely at trial. It is conceded that such evidence, if admitted, would fall to be regarded as material evidence, albeit the Crown also intends to rely upon other evidence. There is no suggestion - at least at this stage in the proceedings - that the minuter was coerced or subjected to any other improper treatment in the course of the interview, or at any other time.

[2] On 25 March 2009, an indictment having been served upon him, the minuter lodged a devolution minute in which he contended that the leading of the evidence in relation to the interview, in the absence of the minuter having been afforded the opportunity of either legal advice upon being taken into police custody prior to the interview taking place or the presence of his solicitor during interview, would be contrary to his rights conferred by Article 6(3)(c) of the European Convention on Human Rights. The sheriff, under reference to the decision of this court in Paton v Ritchie 2000 JC 271 and the decision of the Grand Chamber of the European Court of Human Rights in Salduz v Turkey (Application No. 36391/02, 27 November 2008) has referred certain questions to this court for determination. In view of the decision in Paton v Ritchie and its endorsement by a five-judge bench in Dickson v HM Advocate 2001 JC 203 a bench of seven judges was convened to determine the reference.

[3] The first of the questions posed in the reference is in the following terms:

"Does the fact that legal representation is not available from the moment of entry into police custody, constitute a violation of an accused person's rights under Article 6(1) and 6(3)(c)?"

The court found it unnecessary and inappropriate to answer the second question posed (which encompasses two questions which might call for different answers). Counsel for the minuter had framed two additional questions which the court might find it appropriate to answer. The court decided to answer the first of these questions, subject to certain modifications. That question, as modified, was in the following terms:

"On the assumption that the Lord Advocate sought to rely on the evidence of the interview in seeking a conviction would she, by reason only of the accused not having had an opportunity to have legal advice before the interview, be acting incompatibly with the accused's right to a fair trial guaranteed by Article 6(3)(c) and 6(1) and accordingly would that act be ultra vires in terms of section 57(2) of the Scotland Act 1998?"

The court, having heard parties, including the Advocate General for Scotland, on 22 October 2009 answered each of the first question and the modified additional question in the negative. This opinion expresses its reasons for so answering these questions.

The statutory background
[4] Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (as amended) are in the following terms:

"14(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations -

(a) into the offence; and

(b) as to whether criminal proceedings should be instigated against the person,

detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.

(2) Detention under subsection (1) above shall be terminated not more than six hours after it begins or (if earlier) -

(a) when the person is arrested;

(b) when he is detained in pursuance of any other enactment; or

(c) where there are no longer such grounds as are mentioned in the said subsection (1),

and when a person has been detained under subsection (1) above, he shall be informed immediately upon the termination of his detention in accordance with this subsection that his detention has been terminated.

(3) Where a person has been released at the termination of a period of detention under subsection (1) above he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances.

...

(6) At the time when a constable detains a person under subsection (1) above, he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention; and there shall be recorded -

(a) the place where the detention begins and the police station or other premises to which the person is taken;

(b) any other place to which the person is, during the detention, thereafter taken;

(c) the general nature of the suspected offence;

(d) the time when detention under subsection (1) above begins and the time of the person's arrival at the police station or other premises;

(e) the time when the person is informed of his rights in terms of subsection (9) below and of subsection (1)(b) of section 15 of this Act and the identity of the constable so informing him;

(f) where the person requests such intimation to be sent as is specified in section 15(1)(b) of this Act, the time when such request is -

(i) made;

(ii) complied with; and

(g) the time of the person's release from detention or, where instead of being released he is arrested in respect of the alleged offence, the time of such arrest.

(7) Where a person is detained under subsection (1) above, a constable may -

(a) without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence;

(b) exercise the same powers of search as are available following an arrest.

...

(9) A person detained under subsection (1) above shall be under no obligation to answer any question other than to give the information mentioned in subsection (10) below, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.

(10) That information is -

(a) the person's name;

(b) the person's address;

(c) the person's date of birth;

(d) the person's place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person's identity); and

(e) the person's nationality.

...

15(1) ... a person who

...

(b) is being detained under section 14 of this Act and has been taken to a police station or other premises or place, shall be entitled to have intimation of his detention and of the police station or other premises or place sent to a solicitor and to one other person reasonably named by him,

without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary.

(2) A person shall be informed of his entitlement under subsection (1) above -

(a) on arrival at the police station or other premises; or

(b) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention."

Special arrangements are made under subsection (4) for intimation to a parent where the person detained appears to be a child.

[5] These provisions are, subject to minor amendments, re-enactments of sections 2 and 3 of the Criminal Justice (Scotland) Act 1980. That statute gave legislative effect to certain recommendations of the report entitled "Criminal Procedure in Scotland (2nd Report)", Cmnd. 6218/1975, prepared by a Committee under the chairmanship of Lord Thomson ("Thomson II"). In Chapter 2 of Thomson II the Committee examined the subjects of arrests, search and interrogation of suspects. It noted at para 2.01:

"In these and certain other areas there is a general problem, namely the conflict between the public interest in the detection and suppression of crime on the one hand and the interest of the individual citizen in freedom from interference by the police on the...

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