Her Majesty's Advocate V. Lee John Mccann And William Somerville
| Jurisdiction | Scotland |
| Judge | Sheriff K.A. Ross |
| Court | Sheriff Court |
| Date | 19 July 1999 |
| Published date | 11 August 1999 |
JUDGMENT OF
SHERIFF KENNETH A ROSS
in the cause
HER MAJESTY'S ADVOCATE
against
LEE JOHN MCCANN
and
WILLIAM SOMMERVILLE
Crown: Robertson, P. F. Depute
Accused: Dugan, Adams, Solicitors; Whyte, Whyte & Co, Solicitors
19 July 1999
Lee John McCann and William Sommerville have been indicted to stand trial on a variety of charges alleging contraventions of the Misuse of Drugs Act 1971. The matter called before me in respect of Minutes at the instance of both accused. In these they seek a decision by the court that certain of the productions detailed on the list of productions lodged with the indictment, in terms of Section 66(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), are inadmissible as evidence at any trial.
Procedural History
The indictment was lodged to call for trial at a sitting of the court on 17 May 1999 with a first diet on 3 May 1999. At the calling on 3 May both accused pled not guilty. On the motion of the solicitor for the accused Sommerville the court, in terms of section 71(7) of the 1995 Act, postponed the trial to the sitting of the court on 21 June 1999. A further first diet was fixed for 7 June 1999. On 7 June 1999 the first diet was adjourned until 17 June.
On 17 June each of the accused gave notice, in terms of Rule 40.2 of the Act of Adjournal (Criminal Procedure Rules) 1996 (as amended by the Act of Adjournal (Devolution Issues) Rules 1998), of his intention to raise a devolution issue. That issue was specified, as required by Rule 40.6, in Notices in the Form 40.2A which the Act of Adjournal prescribes. Each had been intimated to the Lord Advocate and the Advocate General and the other parties to the proceedings as Rule 40.2.(1) prescribes. On the motion of the solicitors for both accused, the trial was postponed until the sitting of 19 July and consideration of the Minutes was continued to what I assume was a further first diet on 1 July. At that diet it seems to have been confirmed that no notice in terms of Rule 40.2.(3) had been given by the Advocate General that she wished to become a party to the proceedings. Clearly there was insufficient time to hear argument on the Minutes that day and so the first diet and further consideration of them was again adjourned to 12 July 1999. The indictment and Minutes called before me that day. I heard a brief argument but, on the joint motion of all parties, adjourned the first diet, and further consideration of the Minutes, until 12 July to allow further time for preparation; but also to await a possible decision of the High Court in proceedings in that court the following day where it appeared that a very similar possible devolution issue was to be argued. Suffice to say that when the indictment and Minute called before me again on 12 July the proceedings in the High Court had not been heard. Parties were agreed that there was no certainty that argument would have been heard or any decision issued in the High Court proceedings before the postponed trial diet on 19 July and so there was little point in awaiting the conclusion of these proceedings. I heard a full argument in respect of the issues which the Minutes sought to raise.
I mention in passing that the notice which the Minutes contain had not been given not later than 7 days after the service of the indictment as Rule 49.2.(1) prescribes. The minute of proceedings does not record if any consideration was given to this at the hearing on 17 June. No point was made of it by any party in the hearings before me. Rule 40.5.(1) is in the following terms
"(1) No party to criminal proceedings shall raise a devolution issue in those proceedings except as in accordance with Rule 40.2, 40.3 or 40.4, unless the court, on cause shown, otherwise determines."
Although I was not specifically addressed on the point I should record that I allowed the matter to proceed notwithstanding the failure to observe the terms of Rule 40.2(1). The circumstances were somewhat special. The indictment had been served before the coming into force of Rule 40 on 6 May 1999 and so the issue could not have been raised before then according to the procedures and within the time limit laid down. Section 57(2) of the Scotland Act 1998, which was said to be the basis for the Minutes, did not come into force until 6 May 1999. The Lord Advocate, whose act, in seeking to rely on the evidence, was challenged as incompetent, did not become a member of the Scottish Executive until 20 May 1999. All that seemed to me to constitute sufficient cause as required by Rule 40.5.(1) and, as I say, no issue was made of the matter by the Crown.
The Factual Background
The evidence which the accused sought to have ruled as inadmissible consisted of statements made by each of them to police officers following their detention in terms of section 14 of the 1995 Act. These are apparently to be found in production nos. 6 and 12 on the list of productions (two transcripts of the interviews with the police officers) and in label production nos. 1 to 4 (two audio and two video tapes of these interviews). I did not see the transcripts or hear or see the tapes in the course of the argument before me. Nor was I advised of the detail of their contents. The Minutes each aver that "The said interview contains material which is decisive for the prospects of the Minuter's defence in the forthcoming trial." In his submission to me Mr. Dugan, who appeared for McCann, described the interview of his client as containing a "mixed statement". Mr. Whyte, who appeared for Sommerville, indicated that what was contained in the statement which his client had made could support an inference of his guilt. The Crown did not take issue with either of these descriptions. So clearly the evidence which it was sought to have ruled inadmissible was, at least to some extent, incriminating.
Likewise there was no dispute about what was averred in the Minutes about the circumstances in which the interviews had taken place and the statements were made. During the argument the Crown expanded on these circumstances and no exception was taken to the description given. McCann was detained by police officers at 10.30 hours on 21 August 1998 in terms of section 14 of the 1995 Act. He was taken to Bathgate police station. There, at 10.51 hours, he was advised of his entitlement, in terms of section 15(1)(b) of the 1995 Act, to have intimation of his detention sent to a solicitor. He declined this opportunity. He was not advised or told that he could have the services of a solicitor present before or while he was being interviewed. He was then interviewed by police officers for 26 minutes. At the start of the interview, and on several occasions during it, he was cautioned that he did not require to say anything in answer to any question but if he did it would be recorded or noted and might be used in evidence against him. He confirmed that he understood these cautions. At 17.01 hours he was arrested. He was informed of his rights in terms of section 17(1) of the 1995 Act. He declined the opportunity to have his arrest intimated to a solicitor.
Sommerville was detained at 10.30 hours on 21 August 1998 and taken to Bathgate police station. There, at 11.53 hours, he was also advised of his entitlement, in terms of section 15(1)(b), to have intimation of his detention sent to a solicitor. He wished this done and such intimation was given at 12.05 hours. Like McCann he was not advised or told that he could have the services of a solicitor present before or while he was being interviewed. He was then interviewed by police officers for 27 minutes. At the start of the interview, and on several occasions during it, he was cautioned that he did not require to say anything in answer to any question but if he did it would be recorded or noted and might be used in evidence against him. He confirmed that he understood these cautions. At 16.59 hours he was arrested. He was told of his rights in terms of section 17(1). He declined the opportunity to have his arrest intimated to a solicitor.
The accused McCann is 18 and at the time of his detention and interview was 17. The accused Sommerville is 23 and at the time of his detention and interview was 22. It was not submitted that anything in particular turned on the fact of these ages.
The Statutory Background
Both Minutes aver the statutory basis on which they are raised. Section 57 of the Scotland Act 1988 provides
"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.
(3) Subsection (2) does not apply to an act of the Lord Advocate-
- in prosecuting any offence, or
- in his capacity as head of the systems of criminal prosecutions and the investigation of deaths in Scotland,
which, because of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section."
The Lord Advocate is, in terms of section 44 of that Act, a member of the Scottish Executive.
The Convention referred to is the Convention for the Protection of Human Rights and Fundamental Freedoms which the Human Rights Act 1998 seeks give effect to in Scots law. "The Convention rights" are defined in section 126 of the Scotland Act and have the same meaning as in the Human Rights Act where section 1(1) states inter alia
"In this Act "the Convention rights" means the rights and fundamental freedoms set out in -
- Articles 2 to 12 and 14 of the Convention ,"
Article 6, with which the Minutes are concerned, is to be found in Schedule 1 of the Human Rights Act and is in the following terms
- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but...
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