McGowan (Procurator Fiscal)

Judgment Date23 November 2011
Neutral Citation[2011] UKSC 54
CourtSupreme Court (Scotland)
Docket NumberNo 6
Date23 November 2011

[2011] UKSC 54


Michaelmas Term


Lord Hope, Deputy President

Lord Brown

Lord Kerr

Lord Dyson

Lord Hamilton

Mcgowan (Procurator Fiscal, Edinburgh)
(Respondent) (Scotland)

Appellant (McGowan)

Joanna Cherry QC

P Jonathan Brodie QC

Kenneth J Campbell QC

Douglas Fairley

(Instructed by The Appeals Unit, Crown Office)

Respondent (B)

John Scott QC

Ian Bryce

(Instructed by Central Criminal Lawyers)

Heard on 11 and 12 October 2011


This is a reference of a devolution issue which has arisen in proceedings in the Sheriff Court of Lothian and Borders at Edinburgh. It was required by the Lord Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. The respondent, to whom I shall refer as "B" as his case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971. He pled not guilty and was admitted to bail. A trial diet was fixed for 10 October 2011.


By letter dated 1 August 2011 his solicitor gave notice of his intention to raise a devolution issue in terms of paragraph 1 of Schedule 6 to the Scotland Act 1998. The issue was described in his Devolution Minute in these terms:

"(a) Article 6(3)(c) of the European Convention on Human Rights provides:

'Everyone charged with a criminal offence has the following minimum rights:

To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.'

(b) That in the Minuter's case he was interviewed by the police. The Minuter was offered legal assistance prior to the interview but declined. This was done without recourse to a solicitor. Access to a solicitor should be automatic when someone has been detained in police custody.

(c) Accordingly the Minuter's right to a fair trial under article 6 has been breached if the Crown choose to lead evidence of the Minuter's police interview."


The Lord Advocate understood the propositions in para 2(b) of the Minute to have been based on the observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722. In para 34 of his opinion, with which all the other members of the Appeal Court agreed, the Lord Justice Clerk (Gill) said that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point. In view of the importance of the question raised by this observation the Lord Advocate invited the sheriff to refer the issue to this court, which the sheriff has now done.

The reference

The questions that were referred by the sheriff did not appear to focus the issue in sufficiently precise terms. So, at the Court's request, an amended version was agreed between the parties. The following are the questions in their amended form:

"(i) whether it would necessarily be incompatible with article 6(1) and 6(3)(c) of the European Convention on Human Rights for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody (whether voluntarily, as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 or after arrest and prior to charge) who, before being interviewed by the police:

had been informed by a police officer of his Salduz/article 6 rights of access to legal advice; and

without having received advice from a lawyer, had stated that he did not wish to exercise such rights.

(ii) whether it would be compatible with the respondent's rights under articles 6(1) and 6(3)(c) of the ECHR for the Lord Advocate, at the trial of the respondent, to lead and rely upon evidence of answers given by the respondent during a police interview conducted with him between 10 and 11 July 2011 in circumstances where, prior to such interview taking place, the respondent was informed by a police officer of his Salduz/article 6 rights of access to legal advice and, without having received advice from a lawyer, indicated:

• verbally to police officers prior to being interviewed;

• in writing by signing a solicitor access recording form ('SARF'); and

• verbally at the start of the interview

that he did not wish to exercise such rights."

The first question raises an issue of principle, which is focused by the word "necessarily". The second question is directed to the facts of this case. The Convention issue which it raises, and to which the argument was directed, is focused by the words "without having received advice from a lawyer".


I agree with Lord Hamilton that the task for this court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights (see para 78, below). I emphasise the words "the Strasbourg court", as they indicate the proper limits of the jurisdiction that was given to this court by the Scotland Act 1998. It may be, as Lord Kerr makes clear in his judgment, that the way interviews with suspects are currently conducted in Scotland is in need of improvement. But I do not think that this should be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court.


The structure of the Scotland Act, section 57(2) of which places such a tight fetter on the powers of the Lord Advocate as head of the system of criminal prosecution in Scotland, is an important factor in the determination of how we should perform our task. As Lord Rodger of Earlsferry declared in HM Advocate v Scottish Media Newspapers Ltd 2000 SLT 331, 333, the Lord Advocate simply has no power to move the court to grant any remedy which would be incompatible with the European Convention on Human Rights: see also HM Advocate v Robb 2000 JC 127, 131, per Lord Penrose. This is in sharp contrast to the position under the Human Rights Act 1998, section 8(1) of which provides that in relation to an act of a public authority which it finds unlawful the court may grant such relief or remedy as it considers just and appropriate. The absolute nature of the fetter which section 57(2) imposes affects cases in the past (other than closed cases) as well as this one, and it will affect all cases in the future. This makes it especially important for us to avoid laying down fixed rules that may impede the prosecution of crime in the public interest, unless they have been clearly identified as such by the court in Strasbourg. We are, after all, dealing here with implied rights which are open, in principle, to modification or restriction so long as this is not incompatible with the right to a fair trial. It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice: Montgomery v HM Advocate 2001 SC (PC) 1, 29, [2003] 1 AC 641, 673; Dyer v Watson 2002 SC (PC) 89, 133, [2004] 1 AC 379, 429 per Lord Rodger of Earlsferry. There is no treaty provision which expressly governs the circumstances in which a Convention right may or may not be taken to have been waived. The rules, if there are to be rules, must be found in the judgments of that court. It should be remembered, too, that there is a difference between an absolute rule and a guiding principle. The virtue of a guiding principle is that its application will depend on the facts and circumstances of each case. If that is as far as Strasbourg has taken the point on waiver, we should be content with that. We should not try to push it further by creating a system which is fenced in by fixed rules. A descent to that level of detail is contrary to the approach that the court itself has adopted. The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 510.

The facts

The respondent was detained at 2057 hrs on 10 July 2011 under section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion of housebreaking with intent to steal. He was cautioned and made no reply. He was searched and found to be in possession of a substance which he said was cannabis. He was then taken to a police station, where he arrived at 2130 hrs. He was then advised that he had been detained under section 14 and that he was under no obligation to answer any questions other than to give his name and address, which he then did. At 2145 hrs he was told of his rights under sections 15 and 15A of the 1995 Act, as amended by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, section 1(4). He was told that he was entitled to have intimation of his detention and of the place where he was being detained sent to a solicitor. In reply he gave the name of a firm of solicitors, Central Criminal Lawyers. He was asked whether he wished to have intimation sent to anyone else, to which he replied "No". He was also told that he had the right for a private consultation with a solicitor before being questioned by the police and at any time during questioning. He was asked whether he wished a private consultation with a solicitor before being questioned, to which he replied "No". These questions and replies were noted on a pro forma detention form.


At 2335 hrs the following statement was read out and signed by him immediately before the start of his interview:

"You have chosen not to have a private consultation with a solicitor. Signing this in no way prevents you from changing your decision at a later time."

His interview began at 2336 hrs on 10 July 2011. It continued until 0032 hrs on 11 July 2011. At the start of...

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