Minute By The Accused In Terms Of Sections 72(6)(b)(i) And 79(2)(b) Of The Criminal Procedure Scotland Act 1995 In Causa Her Majesty's Advocate V. T
| Jurisdiction | Scotland |
| Judge | Lord Bonomy |
| Neutral Citation | [2011] HCJ 117 |
| Court | High Court of Justiciary |
| Date | 23 August 2011 |
| Published date | 23 November 2011 |
| [2011] HCJ 117 OPINION OF LORD BONOMY in MINUTE BY THE ACCUSED IN TERMS OF SECTIONS 72(6)(b)(i) and 79(2)(b) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 in causa HER MAJESTY'S ADVOCATE against T _____________ |
Minuter: Connor; Nicol, Harvey & Pierce, Stranraer
Respondent: Niven Smith AD; Crown Agent
23 August 2011
The Issue
[1] At the preliminary hearing in this case at Glasgow on 23 August 2011 there was before the Court a minute at the instance of the accused in terms of section 72(6)(b)(i) and 79(2)(b)(iv) of the Criminal Procedure (Scotland) Act 1995 objecting to the admissibility of Crown productions nos 3 and 5 and Crown label nos 4 and 5, being the transcripts and audio tape recordings of the police interview of the accused on 29 September 2010. There was an associated devolution minute to the effect that, were the Crown to elicit evidence of the interview, that would amount to an act incompatible with the right of the accused to a fair trial in terms of article 6 of the European Convention of Human Rights and would render the trial unfair. Since the Advocate depute proposed to lead evidence in opposing the minute, I continued the preliminary hearing to the earliest convenient date, viz 30 August 2011, when the matter was fully debated both before and after evidence was led by the Advocate depute from three police officers.
[2] The objection stated is encapsulated in the fourth paragraph of section 2 of the minute in the following terms:
"The Minuter was interviewed in relation to a serious charge. The Minuter was interviewed without having had access to legal advice. The Minuter was not granted access to legal advice prior to said interviews, nor during it. The Minuter was not advised that it was in his best interest to obtain said advise prior to being interviewed by the police. The Minuter was not advised that he was entitled to obtain legal advise from a solicitor prior to being interviewed in respect of said charge".
The objection was based on certain propositions from the Opinion of the Lord Justice Clerk, concurred in by the other judges, in the full bench decision in Jude, Hodgson & Birnie v HM Advocate [2011] HCJAC 46, amplified by reference also to certain propositions in Pfeifer & Plankl v Austria (1992) 14 EHRR 692, particularly paragraphs 37 and 38, Pishchalnikov v Russia, application no. 7025/04, European Court of Human Rights, 24 September 2009, and Saman v Turkey, application no. 35292/05, European Court of Human Rights, 5 April 2011. The charge facing the accused is one of assault and rape. Evidence from the interview is essential to corroborate penetration.
[3] The interview took place on 29 September 2010. At that time the case of Cadder v HM Advocate [2010] UK SC 43, [2010] SCCR 951 had been heard in the Supreme Court but no decision had been given. However, guidelines issued by the Lord Advocate applied and the interviewing officers purported to follow these. The relevant guidelines were contained in the Revised Interim Guidance issued on 7 July 2010, which included the following provisions:
"5. Where the SIO (Senior Investigating Officer) determines that interview of a suspect is necessary the suspect should be invited to nominate a solicitor who can be contacted on his behalf. The suspect should be advised that he or she can have a consultation in person with a solicitor in advance of the interview.
6. In the first place, the suspect should be permitted to speak privately to the solicitor by telephone to provide instructions to the solicitor and receive advice and in particular to assist the suspect in deciding whether he or she wishes the solicitor to attend in person at the police station.
...
7. Where a suspect has indicated that he wishes face to face access to a
solicitor in advance of interview, and there is no other bar to such access,
facilities should be made available for a private consultation to take place
between the solicitor and the suspect, prior to any interview unless it is
considered that there are compelling reasons why this should not be
permitted .......".
The principal submission of Miss Connor, counsel for the accused, was that in the circumstances of this case the accused was not put in a position where he could make an informed decision whether or not to take advantage of the opportunity of obtaining legal advice prior to the interview. In light of that it could not be said that declining the opportunity amounted to waiver of the right to legal advice. She relied in particular on paragraph 32 of the Opinion of the Lord Justice Clerk in the case of Jude, Hodgson & Birnie which is in the following terms:
"[32] I accept the submission for the Crown that the rights of a detainee or of an accused person under article 6 are capable of being waived (Cadder, supra, at paras 47 and 96); but in my opinion the argument for the Crown fails in each case for two reasons; namely (i) because the law at the time did not allow the accused to have access to a lawyer at that stage of pre-trial procedure; and (ii) because the appellant's consent to be interviewed in each case was not informed by legal advice.
[33] ....
[34] Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had no reason to think that he had any such right and had not had access to legal advice on the point (cf Millar v Dickson 2001 SCCR 741; Pfeifer and Plankl v Austria (1992) 14 EHHR 692; Pishchalnikov v Russia, application no. 7025/04, 24 December 2009).
At one point Miss Connor appeared to be suggesting that it would be extremely difficult to establish waiver in the absence of an actual consultation between accused and solicitor and suggested that there was support for that proposition in the last part of paragraph 32 and paragraph 34. She also pointed to the facts of the cases of Hodgson & Birnie, narrated at paragraphs 19 and 20 of the Lord Justice Clerk's opinion, as providing further support for that view.
[4] I am satisfied that the Lord Justice Clerk did not mean to suggest that it was only following upon a consultation between accused and solicitor about the merits of having legal advice or assistance in connection with an interview that the accused could effectively waive his right to have that advice prior to and during the interview. That would give the accused who rejected outright the opportunity of advice the power of veto over whether or not he should be interviewed. It also seems basically illogical to require that an accused should take legal advice about whether he should take legal advice. It would conflict with the right of any accused person to conduct his trial and all pre-trial procedure in person. It would also involve an unwarranted imposition upon individual accused of ordinary intelligence. I am satisfied, particularly from the terms of paragraph 34, that what is required is that the accused is clearly advised of his right to take legal advice prior to being interviewed. The emphasis is on providing "access" to legal advice and giving the accused appropriate information to enable an "informed" decision to be made.
The Evidence
[5] The Advocate depute led the evidence of three detective constables involved in the investigation, who attended at the home of the accused along with a scenes of crime officer on 29 September 2010 at around 12.20pm. Miss Connor called no witnesses. Significant parts of her cross-examination, particularly of Detective Constable Mark McHattie who was the first witness, involved assertions about events which were not accepted by the witnesses.
[6] The alleged offence being investigated then, and now the subject of the one charge in the indictment, occurred during the night of 25 into 26 September 2010. By the morning of 29 September 2010 attention had focused upon the accused as the suspected perpetrator. Detective Constable Elaine Whitby obtained a warrant to search the private living area of the locus, and, following a briefing of officers who had taken up duty that morning, attended with Detective Constables Mark McHattie and Thomas William Dingwall, as well as a scenes of crime officer by the name of Ryder, at the premises at about 12.20pm. The private living area was examined and photographed by Ryder in the presence of Whitby, while McHattie and Dingwall escorted the accused, who had agreed to attend voluntarily, to the Police Office. The paperwork referred to in the evidence recorded the accused as being at the Police Office at 13.10 and the interview as commencing at 13.33. The interview was conducted by Whitby and McHattie. The evidence focused upon events during that period and earlier at the Crown Hotel.
[7] McHattie gave evidence of arriving at the locus with his three colleagues at 12.20pm. He said that Whitby showed the accused the warrant and told him that he required to be interviewed in relation to an allegation of a sexual offence. He was invited to attend on a voluntary basis. What that involved was explained to him and he agreed to attend at the Police Office on that basis. He completed a declaration of voluntary attendance form at 13.15. The form was a pro forma which included the phrase "to be interviewed in connection with an offence of ".
That had been completed by a civilian custody officer as "SUSPECTED OF CRIME". McHattie said that that was an error. If he had been completing the form he would have put "RAPE". He and Dingwall had countersigned the form apparently without checking that. It was McHattie's recollection that when he was taken to the charge bar area the accused was again informed of the nature of the allegation against him. He was sure that Dingwall told him the allegation was one of rape. (Dingwall later said he had no recollection of doing so). When asked to describe the accused's demeanour at...
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