Undermining the Advice of a Solicitor: HM Advocate v Hawkins [2017] HCJAC 79; 2017 SLT 1328; 2018 SCCR 1
| Author | Robert S Shiels |
| DOI | 10.1177/0022018319833769 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| Subject Matter | Case Notes |
Case Note
Undermining the Advice
of a Solicitor
HM Advocate v Hawkins [2017] HCJAC 79; 2017 SLT 1328; 2018 SCCR 1
In Scotland, when a person is in custody in relation to an offence, and the person has not been officially
accused of the offence, a constable may put questions to that person: Criminal Justice (Scotland) Act
2016 (asp 1), s. 34(1) and (2). Unlike many other jurisdictions, that person is under no obligation to
answer any questions, other than to give a few personal details: 2016 Act, s. 34(4). A person is officially
charged, that is to say, officially accused of committing an offence if a constable charges the person with
the offence, or the prosecutor initiates proceedings against the person in respect of the offence: 2016 Act,
s. 63. Only a court may authorise a constable to question a person about an offence after the person has
been officially accused of committing the offence: 2016 Act, s. 35(1).
The right of silence in the present case arose when an accused had been advised by his solicitor (who
had been at the police station but did not remain there for the interview) to make no comment in relation
to an allegation of rape. Throughout the interview, the interviewing officer asked repeated questions
regarding the allegation, suggesting that the solicitor for the acc used was unaware of the evidence
against him and had given the suspect standard advice. On three occasions, the detective asked the
interviewee to reconsider the advice given which had been to make no comment. On the third such
occasion, the accused made a lengthy and incriminating statement. After the accused was charged and
prosecuted, a preliminary issue minute was lodged objecting to the admissibility of the evidence of the
police interview.
In reaching a decision on the issue before the court, Lady Scott accepted, (at [23]), that there was no
bullying or aggressive confrontation but there was on any view pressure applied for the accused to
change his position and answer the questions. Her Ladyship assessed that pressure as having been carried
too far from the combination of specific factors: first, at the time of the interview the accused was ‘the
prime and only suspect’; secondly, the prolonged and repetitive questioning, calculated by the Court as
about 213 questions bearing on the allegation, to which the accused had replied ‘no comment’; thirdly,
there had been questioning during what the police had called the ‘impact’ stage when the police told the
accused that they believed that he was responsible for rape and that he knew he had done wrong, see [4]
and [5], and that was cross-examination: following HM Advocate v Mair, 1982 SLT 471, at p. 473.
Further factors were: fourthly , on repeated occasions and at length , the police suggested to the
accused that he should reconsider the advice of his solicitor to make no comment. Although the police
also told the accused it was his right or choice not to answer, the admitted purpose was for the accused to
change his position and the way this was done constituted pressure; finally, there were statements made
to the accused about his solicitor and the legal advice given: rehearsed at [5]. This included the
suggestion that the solicitor did not know what the evidence was, which was a suggestion that the
interviewer knew had no factual basis. Here there did not appear to be any other purpose for making
these statements, other than to undermine the legal advice in the effort to get the accused to depart from
it. The detective in the case did not provide a coherent explanation. The fact that the accused rejected
initially this suggestion did not detract from the improper pressure that was applied. In any event, the
The Journal of Criminal Law
2019, Vol. 83(2) 125–127
ªThe Author(s) 2019
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DOI: 10.1177/0022018319833769
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