HM Advocate v P

JurisdictionScotland
JudgeLORD HOPE,LORD DYSON,LORD KERR,LORD MATTHEW CLARKE,LORD BROWN
Judgment Date06 October 2011
Neutral Citation[2011] UKSC 44
CourtSupreme Court (Scotland)
Docket NumberNo 4
Date06 October 2011

[2011] UKSC 44

THE SUPREME COURT

Michaelmas Term

before

Lord Hope, Deputy President

Lord Brown

Lord Kerr

Lord Dyson

Lord Matthew Clarke

Reference—Her Majesty's Advocate
and
P (Scotland)

Appellant

Frank Muholland QC,

Lord Advocate

Joanna Cherry QC

Catherine Devaney

(Instructed by the Crown Agent, Crown Office)

Respondent

Matthew Auchincloss

(Instructed by Public Defence Solicitors Office)

Heard on 28, 29 and 30 June 2011

LORD HOPE (WITH WHOM LORD DYSON , LORD KERR AND LORD MATTHEW CLARKE AGREE)

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 who had no access to a lawyer while he was being questioned as a detainee 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 incriminating statements made by the appellant while being interviewed by the police in such circumstances 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 consisted of incriminating statements that the appellant made when he 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 Crown 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. Three of them are cases where the evidence in question was obtained by the police otherwise than by questioning at a police station following detention under section 14 of the 1995 Act. The fourth is concerned with whether the ratio of the decision in Salduz extends to lines of enquiry which have been derived from answers that the accused gave to questions while he was being detained in the police station.

3

Common to all four cases 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 each case this occurred before the judgment was given in Cadder. The issue that the first three references raise is whether the decision in Salduz to which Cadder gave effect has established that anyone who has been "charged" with an offence, so that article 6 is engaged, and is then questioned by the police is entitled to access to a lawyer at that stage; or whether the right of access to a lawyer applies only where the accused is being subjected to police questioning while in custody. These cases can be grouped together under the general heading "pre-detention questioning". I propose to deal with them in a separate judgment: Ambrose v HM Advocate [2011] UKSC 43.

4

The issue in the fourth reference, which is the subject of this judgment, is whether the Salduz principle extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether the principle does not extend to evidence which, although its existence was derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crown's case. Evidence of this kind has been referred to as "the fruit of the poisonous tree": see Stephen C Thaman, "Fruits of the Poisonous Tree" in Comparative Law, (2010) 16 Southwestern Journal of International Law 333, 335, fn 5. The use of such evidence was at one time thought to have been excluded in the United States of America, but the doctrine has been relaxed in favour of admissibility by decisions of the US Supreme Court. In Murray v United States 487 US 533 (1988), paras 7–8, the test that was applied by Scalia J was whether the search pursuant to a warrant was a genuinely independent source of the information relied on by the prosecutor. The question which we have to decide depends on an analysis of the jurisprudence of the European Court of Human Rights at Strasbourg.

The facts
5

This is a case which has not yet gone to trial, so the names of those involved have been anonymised. The reference has been made at the request of the Lord Advocate by the trial judge, Lord Bracadale. The accused, referred to as P, has been indicted in the High Court of Justiciary on a charge of assault and rape which was alleged to have taken place on 10 and 11 October 2009. On 11 October 2009 he was detained under section 14 of the 1995 Act in connection with the allegation which had been made against him by the complainer. He was taken to a police station where he was interviewed. He was not given access to legal advice prior to or during the interview. He was asked where he had been on the date of the alleged rape. The locus of the complaint was a short walking distance from a pub where he and the complainer met. He said that, prior to the alleged assault and rape, he had taken a powdered substance at another pub that had provoked an adverse reaction.

6

His interview then continued in these terms:

"Q-…Are there people that you, you could say that would back up how you were reacting to that?

A—Erm, yeah, yeah, there would be yeah.

Q—Who are they?

A—Erm could say my best mate I suppose

Q—Who's that?"

He then gave his friend's name and address to the police and added that his friend would be able to back him up. The police subsequently took a statement from his friend in which he spoke to the accused's reaction after he had taken a drug and provided support for what the accused had said about this. But he also described having a telephone conversation with the accused on the morning of 11 October 2009 in which the accused described meeting a woman the previous night and having consensual sexual intercourse with her.

7

The accused lodged a devolution minute in which he submitted that his rights under article 6(3) would be contravened if the Crown were permitted to elicit evidence of his police interview, and that the evidence of his friend about the telephone conversation was incriminatory evidence which had been obtained as a direct result of his replies during the police interview and that the Crown should not be permitted to lead this evidence. A diet of debate was then fixed, prior to which written submissions were lodged on behalf of the Crown and the accused. In its written submissions the Crown accepted that any incriminatory statements that the accused made during his police interview without having had access to legal advice were inadmissible. But it indicated that it proposed to lead the friend's evidence at the trial, and in particular to elicit from him evidence of what the accused said to him during his telephone conversation with the accused.

8

At the diet of debate, prior to any argument, the then Lord Advocate intimated that she required the court to make a reference to this court. The questions that were then referred by the trial judge are in these terms:

"(i) Whether the act of the Lord Advocate in leading and relying on evidence obtained from information disclosed during the course of a police interview with an accused person conducted in accordance with section 14 of the Criminal Procedure (Scotland) Act 1995 without the accused person having had access to legal advice would be incompatible with the accused person'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.

(ii) Whether the act of the Lord Advocate in leading and relying on evidence in these proceedings from Crown witness number 13 [SF] (whose identity was disclosed to the police, and thereby the Crown, during the course of a police interview with the accused conducted in accordance with section 14 of the Criminal Procedure (Scotland) Act 1995 on 11 October 2009 without the accused having had access to legal advice), would be incompatible with the accused's rights under article 6(1) and 6(3)(c) of the European Convention on Human Rights."

9

In Cadder v HM Advocate 2010 SLT 1125, para 48 I said that, although it was held in Gäfgen v Germany (2010) 52 EHRR 1 that there had been no violation of articles 6(1) and 6(3) as the evidence that had been secured as a result of interrogation in that case did not have bearing on the applicant's conviction and sentence, the decision served a warning that the Salduz principle could not be confined to admissions made without access to legal advice during police questioning. In para 50 I said that the guarantees that are otherwise available under the Scottish system were incapable of removing the disadvantage that a detainee will suffer if he says something which enables the police to obtain incriminating evidence from other sources which is then used against him at his trial. The question that this reference raises is whether the Convention jurisprudence shows that there is an exclusionary rule to this effect of the kind described in Salduz as my observations in these paragraphs might be taken to have suggested, or whether evidence which was obtained because of things learned because of what the detainee said during such police questioning but exists independently of it will normally be admissible. Does the rule extend to evidence derived from his...

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