Raymond Jude+michael Hodgson+josh Birnie V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Osborne,Lord Eassie,Lord Clarke,Lord Mackay of Drumadoon |
| Neutral Citation | [2011] HCJAC 46 |
| Court | High Court of Justiciary |
| Date | 11 May 2011 |
| Docket Number | XC562/08 |
| Published date | 11 May 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Eassie Lord Clarke Lord Mackay of Drumadoon | [2011] HCJAC 46 XC562/08 XC188/09 XC93/10 OPINION OF THE LORD JUSTICE CLERK In the Appeals by (1) RAYMOND JUDE; (2) MICHAEL HODGSON; and (3) JOSH BIRNIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the first and third appellants: Shead, Mason; Drummond Miller, Edinburgh
For the second appellant: Shead, Mackenzie; Bruce & Co, Arbroath
For the Crown: Cherry QC, AD, Devaney; Crown Agent
11 May 2011
Introduction
[1] The questions that we have to decide in these appeals arise in consequence of the decision of the Supreme Court in Cadder v HM Adv (2010 SLT 1125). In each of these cases the appellant was interviewed by the police before he was charged and before he had had access to legal advice; and at the trial the Crown led evidence of certain statements made by him during the interview as part of its case. The grounds of appeal in each case include the contention that the appellant's rights under article 6 of the Convention were thereby infringed.
[2] Since each appeal was current at the date of the Supreme Court's decision, the ruling in Cadder might be thought to apply. However, the Crown submits that for three reasons that are common to all the three appeals, and for a fourth reason that applies only in the appeal of Raymond Jude, the Cadder principle does not arise. We have dealt with this as a preliminary matter.
The relevant legislation
Criminal Procedure (Scotland) Act 1995 (the 1995 Act)
Sections 14 and 15
[3] Sections 14 and 15 provide inter alia as follows:
"14.-(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations -
(a) into the offence; and
(b) as to whether criminal proceedings should be instigated against
the person,
detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place ...
(9) a person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.
15.-(1) Without prejudice to section 17 of this Act, a person who, not being a person in respect of whose custody or detention subsection (4) below applies -
(a) has been arrested and is in custody in a police station or other
premises, shall be entitled to have intimation of his custody and of the place where he is being held sent to a person reasonably named by him;
(b) is being detained under section 14 of this Act and has been taken to a police station or other premises or place, shall be entitled to have intimation of his detention and of the police station or other premises or place sent to a solicitor and to one other person reasonably named by him,
without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary ...
(2) A person shall be informed of his entitlement under subsection (1) above -
(a) on arrival at the police station or other premises; or
(b) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention.
(3) Where the person mentioned in paragraph (a) of subsection (1) above requests such intimation to be sent as is specified in that paragraph there shall be recorded the time when such request is -
(a) made;
(b) complied with ... "
Section 118(8)
[4] Section 118(8) provides as follows:
"(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act-
(a) shall be quashed for want of form; or
(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to-
(i) the relevancy of the indictment, or the want of specification therein; or
(ii) the competency or admission or rejection of evidence at the trial in the inferior court,
unless such objections were timeously stated."
Section 57(2)
[5] Section 52(7) provides as follows:
"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."
Section 100
[6] Section 100 provides inter alia as follows:
"(1) This Act does not enable a person -
(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
(b) to rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights ...
(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.
(3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights.
(3B) Proceedings to which this subsection applies must be brought before the end of -
(a) the period of one year beginning with the date on which the act complained of took place, or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question ... "
The road to Cadder
The 1995 Act, sections 14 and 15
[7] At all material times in these cases the detention of a suspect at a police station for questioning was governed by sections 14 and 15 of the 1995 Act (supra). In terms of section 15(1)(b) a suspect detained in this way had the right to have intimation of his detention given to a solicitor and to one other person reasonably named by him; but he had no right to have a solicitor present either before or during his interview. During the interview, the suspect was not obliged to answer any question other than a question as to his name and address (s 14(9)).
[8] In Paton v Ritchie (2000 JC 271) this court held that neither the common law nor the Convention required that in every case a detainee should have the opportunity to have his solicitor present; and that the question whether a fair trial could be achieved depended not simply on what happened during the preliminary investigation but on the whole proceedings. In Dickson v HMA (2001 JC 203), a court of five judges affirmed that view.
Convention jurisprudence before Cadder
[9] I need not examine in detail the jurisprudence of the Strasbourg court that led up to the decision in Salduz v Turkey (infra). It appears to be common ground that it established fairly clearly that where the prosecution relied on evidence of a confession made by an accused person while detained by the police, at a time when he had not had access to legal advice, there was a breach of his right to a fair trial under article 6.
Salduz v Turkey ((2008) 49 EHRR 421)
[10] On 27 November 2008 the Grand Chamber of the Strasbourg Court issued its judgment in this case. It held inter alia that article 6 was relevant to pre-trial proceedings where the fairness of the trial was likely to be seriously prejudiced by an initial failure to comply with the provisions of article 6; that early access to a lawyer was part of the procedural safeguards to which the court would have particular regard when examining whether a procedure had extinguished the very essence of the privilege against self-incrimination; that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police unless it was demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right; and that the rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. As the Supreme Court observed in Cadder, the judgment of the Grand Chamber did not depart from its previous case law but simply built upon it and developed it (Cadder, supra, at paras 43, 59, 67, 68).
[11] In the wake of Salduz numerous devolution minutes were intimated to the Crown on the ground that the leading of evidence by the Crown of a statement made by an accused person during a police interview when he had not had access to legal advice was a breach of the accused's right to a fair trial under article 6, and was therefore a breach by the Lord Advocate of section 57(2) of the Scotland Act 1998 (supra). I shall refer to these as Salduz minutes.
[12] Between November 2008 and October 2009 1350 Salduz minutes were lodged.
HM Adv v McLean (2010 SCCR 59)
[13] In October 2009 the effects of Salduz and its relevance to Scottish pre-trial procedure were considered in this court by a bench of seven judges in HM Adv v McLean (supra). In that case a crucial element in the Crown case was the record of the appellant's interview at a police station. It was agreed that the police interviewed the...
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