Gary Alexander Paton V. Procurator Fiscal, Alloa
| Jurisdiction | Scotland |
| Judge | Lord Sutherland,Lord Dawson,Lord Justice General |
| Court | High Court of Justiciary |
| Docket Number | 1736/00 |
| Date | 24 November 1999 |
| Published date | 24 November 1999 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice Clerk Lord Sutherland Lord Dawson | Appeal No: 1736/00 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL TO THE COMPETENCY AND RELEVANCY under section 174(1) of the Criminal Procedure (Scotland) Act 1995 by GARY ALEXANDER PATON Appellant; against PROCURATOR FISCAL, Alloa Respondent: _______ |
Appellant: McCluskey; Wheatley & Co.
Respondent: Di Rollo, A.D.; Crown Agent
24 November 1999
On 19 July 1999 the appellant appeared in Alloa Sheriff Court in answer to a summary complaint. He was charged that on 19 June 1999 he had attempted to break into certain premises in Alloa with intent to steal. In the alternative, he was charged with having been found at the premises without lawful authority to be there so that, in all the circumstances, it might reasonably be inferred that he intended to commit theft, in contravention of section 57(1) of the Civil Government (Scotland) Act 1982.
Before the appellant was called upon to plead his solicitor tendered a minute which sought to raise a devolution issue. The sheriff continued the case until 30 July when he heard submissions on behalf of the appellant and the respondent. Thereafter he refused the minute but granted the appellant leave to appeal.
The circumstances out of which this appeal arises are set out in the minute and were elaborated to some extent by Mr. McCluskey who appeared on behalf of the appellant. The account on which we proceed is as follows. On 19 June the police received a 999 call about an alarm sounding at the premises. When police officers went to the car park at the premises they saw the appellant walking from one side of the building. Although it was a warm evening, he was wearing a thick yellow jacket, a blue woollen tammy and black gloves. At the sight of the police vehicle he began to run. He was chased by police officers to a back garden. When they caught up with him he was still wearing the same clothes, but had put on a baseball cap in place of the tammy. At about 9.40 p.m. he was detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995. When he was searched a metal socket was found in a rear pocket of his jeans. He was taken to a police station. While he was there he indicated that he wanted to have a solicitor informed. At about 10.05 p.m. the police left a message on an answering machine at the home of his solicitor in which he was informed that the appellant had been detained and was at the police station. At about 11.50 p.m. the appellant was interviewed after being cautioned and without his solicitor being present. When he was asked to explain what he was doing near the premises he said that he had been trying to break in. He added that he had been wanting something to sell in order to get drugs. When he was asked what had stopped him getting in, he said that it was his hearing the police coming round the corner. He said that he had not used the socket. At about 1.27 a.m. on the following morning he was arrested. Thereafter his solicitor was informed personally by a telephone message from the police. The appellant was not charged until 7.40. At that stage he said in response that he had been merely passing by when he was chased by the police. He had been going to "tap" someone for a fiver.
At the outset there are two matters which we can deal shortly. First, in this court, unlike the Sheriff Court, it was not in dispute that the minute contained sufficient detail to enable the court to determine whether a devolution issue arose. Secondly, it was not in dispute that the appellant was able to point to an "act" of the Lord Advocate within the meaning of section 57(2) of the Scotland Act 1998. The Advocate depute did not dispute Mr. McCluskey's submission that this could be satisfied in this case by the prospective acts of the procurator fiscal, as representing the Lord Advocate, in continuing with the prosecution, such as by seeking to lead evidence as to the statement made by the appellant at the interview which began at 11.50 p.m. on 19 June.
The submission made by Mr. McCluskey on behalf of the appellant was that such an act of the Lord Advocate would be incompatible with his Convention rights, namely his right under Article 6(1) to a "fair and public hearing", and under Article 6(3)(c) "to defend himself in person or through legal assistance of his own choosing...". The Advocate depute did not dispute that the latter provision was apt to cover the stage at which the appellant had been detained by the police.
Mr. McCluskey pointed out that under the law of Scotland a person such as the appellant who had been detained under section 14(1) and had been taken to a police station had the right to have intimation of his detention and of the police station sent to a solicitor. He was to be informed of this entitlement on his arrival at the police station (section 15(1)(b) and (2)(a)). However, it was important to note that this did not confer any right on the person detained to have access to the services of a solicitor before he was interviewed. The police had a discretion to allow or refuse such access. In Imbrioscia v. Switzerland (1993) 17 E.H.R.R. 441, the European Court of Human Rights at para. 38 observed that in ascertaining whether the method chosen by a Contracting State to give effect to the right conferred by Article 6(3)(c) was consistent with the requirements of a fair trial, it had to be remembered that the Convention was designed to "guarantee not rights that are theoretical or illusory but rights that are practical and effective". Mr. McCluskey submitted that the criminal justice system should not be dependent on whether or not goodwill was shown. He also pointed out what an accused said at a police interview would not be admissible as evidence of the truth unless it incriminated him to some extent. The fact that a solicitor was not present at the interview had not been regarded in the past as...
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