Josh Birnie V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Eassie,Lord MacLean |
| Neutral Citation | [2011] HCJAC 4 |
| Court | High Court of Justiciary |
| Date | 20 January 2011 |
| Docket Number | XC93/10 |
| Published date | 20 January 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Eassie Lord MacLean | [2011] HCJAC 4 Appeal No: XC93/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by JOSH BIRNIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Drummond Miller
Respondent: D. Bain, Q.C., A.D.; Crown Agent
20 January 2011
[1] The appellant was indicted in the Sheriff Court at Aberdeen on three charges. The first alleged that, on 17 March 2009 he indecently assaulted and abducted [ALA] then aged 14 years, all with intent to rape her. The second alleged that, on various occasions between May and July 2009, he breached the peace, the burden of the charge being that he had threatened [ALA] and another girl. The third was that, on various occasions in June 2009, he sent offensive or indecent and obscene electronic messages to a third girl, contrary to the Communications Act 2003, Section 127(1)(a).
[2] The trial commenced on 7 December 2009. The appellant was represented by counsel and solicitor. In the course of the trial the Crown accepted a plea of not guilty to charge 2 and the appellant pled guilty to charge 3. On charge 1, the jury returned a verdict of guilty under deletion of certain averments, including that of attempt to rape. The appellant was sentenced to 18 months' detention.
[3] The appellant sought leave to appeal against his conviction. Four grounds were formulated at that stage, the first three being in substance a single contention that, on the evidence, no reasonable jury, properly directed, could have returned a verdict of guilty on charge 1. The fourth ground related to another matter. Leave to appeal was refused in relation to that fourth ground but granted as to the rest.
[4] The appeal called for hearing on 16 November 2010 when the court observed that the only corroboration of the complainer's account on the first charge appeared to be the appellant's replies to questioning at interview following his detention under section 14 of the Criminal Procedure (Scotland) Act 1995. With the recent decision of the Supreme Court in Cadder v HM Advocate [2010] UKSC 43 (promulgated on 26 October 2010) in mind, it noted that there was no ground of appeal before the court founded on that authority. Having heard parties, it discharged the diet of hearing of the appeal and directed the appellant to lodge and intimate to the Crown, within a week, a proposed additional ground of appeal. The appeal was continued to consider a motion seeking leave to amend the note of appeal in terms of the proposed additional ground. The case has now come before us for such consideration.
[5] The application for leave to amend the grounds of appeal in the event contained more than one additional ground. It is in the following terms:
"Application is hereby made for leave to amend the grounds of appeal by insertion of the following additional grounds:-
'5 (a) The appellant was convicted on charge one on the strength of (i) the parole evidence of the complainer named in charge one and (ii) certain purported admissions made by the appellant at the conclusion of a police interview and in the course of a voluntary statement made to the police following his detention and interview. Absent the purported admissions made by the appellant, there was insufficient evidence to support a conviction on charge one. The appellant, who was seventeen years old at the time, did not have the opportunity to consult with a solicitor prior to being interviewed, or prior to making the voluntary statement. A solicitor was not present at the interview or when the voluntary statement was made. In seeking a conviction in those circumstances, the Lord Advocate was acting incompatibly with the appellant's Convention rights, including those under Article 6(3)(c) and 6(1) of the European Convention on Human Rights. Such an act was ultra vires of the Lord Advocate by reference to section 57(2) of the Scotland Act 1998;
5 (b) In any event, the reliance by the Crown upon the purported admissions of the appellant in the preceding circumstances deprived the appellant of a fair trial, to which he was entitled under Article 6(1) of the convention and at common law;
6 (a) The appellant was represented by counsel, with instructing solicitor, at trial. The representation and advice afforded to the appellant was defective in that trial counsel failed to take timeous objection to the admissibility of the purportedly incriminating replies made by the appellant at interview and in the course [of] the voluntary statement;
6 (b) Further, the representation and advice afforded to the appellant by counsel was defective in that trial counsel entered into a joint minute of agreement incorporating the purportedly incriminating replies made by the appellant at interview and in the course of the voluntary statement;
6 (c) For the reasons stated at grounds 6(a) and 6(b) above, the conduct of trial counsel deprived the appellant of a fair trial and accordingly there has been a miscarriage of justice."
[6] The Crown on various grounds opposed the motion for leave to amend. Mr Shead for the appellant emphasised that the proposed grounds of appeal on the basis of defective representation and advice would only arise if the court sustained the Crown's contention that, on the basis of waiver or the application of Section 118(8) of the Criminal Procedure (Scotland) Act 1995, it was not open to the appellant to maintain a "Cadder" contention.
[7] It is appropriate at this stage to advert to the relevant legal history. On 27 November 2008 a Grand Chamber of the European Court of Human Rights issued its decision in Salduz v Turkey (2009) 49 EHRR 19 in which it held that, in the circumstances before it, there had been a violation of Article 6(3)(c) in conjunction with Article 6(1) of the Convention in respect of the lack of legal assistance to the applicant while he was in police custody. In HM Advocate v McLean 2010 SCCR 59, the minuter relied on the Grand Chamber judgment in Salduz in support of a contention that, he having been interviewed during detention in the absence of 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, the contents of the interview were not admissible in evidence. This court on 22 October 2009 rejected that contention holding that the right under Article 6(3)(c) was not an absolute right and that the right to a fair trial under Article 6(1) was otherwise secured under Scots law. Although not reported until early in 2010, the decision and reasoning of the court was available immediately at [2009] HCJAC 97. By the time of the trial in the present case it was well known in the profession. The decision in McLean was, with other Scottish decisions, overruled by the Supreme Court of the United Kingdom in Cadder v HM Advocate, judgment being given on 26 October 2010. Although press and other reports of the hearing in May suggested that the Supreme Court might be minded to overrule McLean, the decision of this court in McLean remained the authoritative ruling on the matter until it was in fact overruled.
[8] We turn now to the circumstances of the present case. The appellant was detained by the police on Friday 14 May 2009. He was then 18 years of age. He was interviewed under caution by police officers in the late morning of that day. He was asked whether he wished a solicitor to be present but declined such assistance. In the course of the...
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Her Majesty's Advocate V. Michael Hodgson
...should be heard in this court by a bench of five judges. We think it desirable that the pending appeal in the case of Birnie v HM Adv ([2011] HCJAC 4), which appears to raise similar issues, should in due course be heard along with this appeal. The other questions in the present appeal will......