Paton v Ritchie

JurisdictionScotland
CourtHigh Court of Justiciary
Judgment Date24 November 1999
Docket NumberNo 31
Date24 November 1999

JC

L J-C Cullen, Lord Sutherland and Lord Dawson

No 31
PATON
and
RITCHIE

Procedure—Summary procedure—Devolution issue—Pannel charged with attempted housebraking with intent—Crown proposing to lead evidence of incriminating statement made by pannel to police during detention—Police informing pannel's solicitor of pannel's detention but pannel not advised that solicitor could be present during interview—Pannel interviewed without solicitor—Whether leading of evidence of statement incompatible with pannel's right to a fair trial—Whether pannel's challenge premature—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 14(1)1—European Convention on Human Rights, art 6(3)(c)2

The pannel was charged on a summary complaint which libelled attempted housebreaking with intent to steal and, alternatively, a contravention of sec 57(1) of the Civic Government (Scotland) Act 1982. The pannel was detained by police officers at 9.40 pm as he was walking from the side of a building in which the burglar alarm was sounding. On seeing the police the pannel ran away but was pursued and caught. After arriving at the police station the pannel indicated that he wished a solicitor to be advised of his detention. A solicitor was so informed by the police's leaving a message on his telephone answering machine at 10.05 pm. Thereafter, at about 11.50 pm, the pannel was interviewed under caution by the police in the absence of his solicitor and made certain incriminating admissions in response to police questioning. The pannel was arrested at 1.27 am and was charged at 7.40 am when he stated in response to the charge that he had merely been passing by when the police had chased him. Prior to pleading the pannel tendered a minute raising as a devolution issue an allegation that his right under art 6(3)(c) to defend himself through legal assistance of his choosing had been infringed by the police's not informing him that he was entitled to have a solicitor present at his interview. The sheriff (Reid) rejected the minute and the pannel thereafter appealed to the High Court of Justiciary.

Held (1) (the pannel conceding the point) that implicit in the pannel's challenge to the Lord Advocate's actings in seeking to lead evidence of the pannel's statement was a challenge to the admissibility of that statement (p 274E); (2) that as the admissibility of the statement would depend on the evidence which would be led in the case and the importance which would be attached to the factors which were relevant to the question of fairness, it was entirely premature and inappropriate to seek to resolve the question of admissibility at this stage (p 274H); and (3) that in any event, since neither Scots law nor the European Convention required that in all cases a detainee be afforded the opportunity to have his solicitor present and since the absence of the pannel's solicitor had not had a decisive effect on the preparation of the pannel's defence, it could not be affirmed that the pannel would not receive a fair trial (p 276D); and appealrefused.

Gary Alexander Paton was charged on a summary complaint in the sheriffdom of Tayside, Central and Fife at Alloa at the instance of Cameron Ritchie, procurator fiscal there, the libel of which set forth attempted housebreaking with intent to steal and, alternatively, a contravention of sec 57(1) of the Civic Government (Scotland) Act 1982, allegedly committed on 19 June 1999.

Prior to being called on to plead, the pannel tendered a minute raising a devolution issue in terms of r 40.3 of the Criminal Procedure Rules 1996.

After debate, on 30 July 1999, the sheriff (Reid) refused the minute.

The pannel thereafter appealed, with leave of the sheriff, to their Lordships in the High Court of Justiciary.

Cases referred to:

Advocate (HM) v CunninghamSC 1939 JC 61

Advocate (HM) v FoxSC 1947 JC 30

Asch v AustriaHRC (1991) 15 EHRR 597

Imbrioscia v SwitzerlandHRC (1993) 17 EHRR 441

Moran v JessopUNK 1989 SCCR 205

Murray v United KingdomHRC (1996) 22 EHRR 29

Robertson v MaxwellSC 1951 JC 11

Robson v United Kingdom Application No 25648/94 (15 May 1996, unreported)

Tonge v HM AdvocateSC 1982 JC 130

Windsor v United Kingdom Application No 13081/87 (14 December 1988, unreported)

Textbooks, etc referred to:

Second Report of the (Thomson) Committee on Criminal Procedure in Scotland (Cmnd 6218, 1975), paras 5.08 and 7.16

The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Cullen), Lord Sutherland and Lord Dawson for a hearing on 22 October 1999. Eo die their Lordships madeavizandum.

At advising, on 24 November 1999, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen).

Opinion of the Court—On 19 July 1999 the appellant appeared in Alloa sheriff court in answer to a summary complaint. He was charged that on 19 June 1999 he had attempted to break into certain premises in Alloa with intent to steal. In the alternative, he was charged with having...

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10 cases
  • Peter Cadder Appellant
    • United Kingdom
    • Supreme Court (Scotland)
    • 26 October 2010
    ...otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness. It approved its decisions in Paton v Ritchie 2000 JC 271 and Dickson v HM Advocate 2001 JC 203 (by a court of five judges) that the Crown's reliance on admissions made by a detainee while be......
  • Peter Cadder Appellant
    • United Kingdom
    • Supreme Court (Scotland)
    • 26 October 2010
    ...otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness. It approved its decisions in Paton v Ritchie 2000 JC 271 and Dickson v HM Advocate 2001 JC 203 (by a court of five judges) that the Crown's reliance on admissions made by a detainee while be......
  • Duncan Maclean V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 22 October 2009
    ...Article 6(3)(c) of the European Convention on Human Rights. The sheriff, under reference to the decision of this court in Paton v Ritchie 2000 JC 271 and the decision of the Grand Chamber of the European Court of Human Rights in Salduz v Turkey (Application No. 36391/02, 27 November 2008) h......
  • DPP v Raymond Gormley and Others
    • Ireland
    • Supreme Court
    • 6 March 2014
    ...31.10.2013 2013 ECHR 1070 (APPLICATION NO 17416/03) BONDARENKO v UKRAINE UNREP ECHR 14.5.2013 (APPLICATION NO 27892/05) PATON v RITCHIE 2000 JC 271 2000 SLT 239 2000 SCCR 151 DICKSON v HM ADVOCATE 2001 JC 203 2001 SLT 674 2001 SCCR 397 HM ADVOCATE v MCLEAN 2010 S.L.T. 73; 2010 S.C.L. 166; 2......
  • Request a trial to view additional results
2 books & journal articles
  • The Right to Legal Assistance During Detention
    • United Kingdom
    • Edinburgh Law Review Nbr. , September 2011
    • 1 September 2011
    ...as a whole, which cannot be determined until the trial is underway.4949At 132. At around the same time came Paton v Ritchie.50502000 JC 271. Unlike in Robb, the minuter had not asked for a solicitor but nonetheless raised a devolution minute claiming that article 6 had been infringed becaus......
  • ‘Substantial and Radical Change’: A New Dawn for Scottish Criminal Procedure?
    • United Kingdom
    • The Modern Law Review Nbr. 75-5, September 2012
    • 1 September 2012
    ...of questioning suspects ina criminal investigation in Scotland’16 in the light of Cadder and the ECHRjurisprudence.6Paton vRitchie 2000 JC 271; Dickson vHMAdvocate 2001 JC 203.7 (2009) 49 EHRR 19.8ibid at [55].9 [2009] HCJAC 97.10 ibid at [27].11 Cadder at [40] per Lord Hope; [93] per Lord ......

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