Cases were published this morning by the Supreme Court on the matters of circumstances in which an accused person will be taken to have waived the right of access to a lawyer, and whether the time limit in section 100(3B) Scotland Act 1998 applies to raising a devolution issue in a criminal appeal. The Supreme Court provided the following summaries of the two decisions.

Jude (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)
Hodgson (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)
Birnie (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)

The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews.

In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010.

The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law.

The Crown’s objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocate’s position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it.

The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Jude’s appeal;(ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview; and(iii) Whether the reliance by the Crown upon the appellant’s admissions in these circumstances deprived him of his right to a fair trial under Article 6(1) of the Convention.

JUDGMENT

The Supreme Court unanimously dismisses the Crown’s appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case.

It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4-1, it allows the appeal on the question whether it was incompatible with Birnie’s right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment.

REASONS FOR THE JUDGMENT

(1) Time Bar:
Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act 

A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is ‘by virtue of’ the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[.

The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights ‘in any such proceedings’. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b).

The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights.

An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts.

(2) Waiver.
Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54.

It was not suggested in the course of argument that an absolute rule requiring reasons for the accused’s decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer.

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. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure.

There is room for argument as to whether Birnie’s statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary.

For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance.


McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) (Scotland) [2011] UKSC 54
Reference of a devolution issue from Edinburgh Sheriff Court

This is a reference of a devolution issue at the request of the Lord Advocate. It is directed to the issue of waiver. The Respondent, ‘B’, whose 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.

Before the commencement of a police interview, he was offered legal assistance but declined the offer. His waiver of the right to legal assistance took place without his having received advice on the point from a solicitor In advance of the trial, B’s solicitor lodged a Devolution Minute stating that B’s right to a fair trial under Article 6(3)(c) of the European Convention on Human Rights would be breached if the Crown were to lead evidence of his police interview since, it was claimed, access to a solicitor should be automatic when someone has been detained in police custody. The propositions in the Devolution Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722, in which the Lord Justice Clerk (Gill), delivering the unanimous opinion of the Court, had stated 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 that observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended reference agreed between the parties sets out the following questions for consideration by the Court:(i) Whether, in principle, it would be incompatible with Article 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/Article 6 rights 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 B’s rights under Articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview.

Both parties agreed that question (i) should be answered in the negative. The Appellant argued that question (ii) should be answered in the affirmative. The Respondent disagreed.

JUDGMENT
The Supreme Court, by a 4-1 majority, answers the first question in the reference in the negative, and remits the second question to the sheriff. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment.

REASONS FOR THE JUDGMENT
Article 6 does not expressly state that a person must have had legal advice before he can be taken to have waived the right of access to a lawyer. However, it is clear that the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled, so as to give practical effect to the right to a fair trial.

The task for the Supreme 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. It may be that the way police interviews are currently conducted in Scotland is in need of improvement. But that should not 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 or by laying down fixed rules that may impede the prosecution of crime in Scotland unless they have been clearly identified as such by Strasbourg.

In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal, and must be attended by the minimum safeguards commensurate to the importance of the right. None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right. This also reflects the position of the Supreme Courts of Canada and the United States.

There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police.

The statements of the Lord Justice Clerk in Jude to the effect that there is a rule requiring legal advice for the purpose of a valid waiver of the right to legal assistance should be disapproved. Where the detainee, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily.

The Strasbourg decisions indicate, however, that in some cases access to a lawyer may well be a prerequisite of a valid waiver. In particular, it must not be taken for granted that everyone understands the rights in question. People who are vulnerable or under the influence of alcohol or drugs may need to be given more than standard formulae if their right to a fair trial is not to be compromised.

 What we have been given by Strasbourg is a guiding principle as to what is needed for there to be an effective waiver. Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case.

Two suggestions are made for the improvement of the practice that is adopted at present: first, in order to minimise the risk of misunderstanding, police should ask the detainee for his reasons for waiving his right to legal assistance, and record the reasons given. This will provide an opportunity for any obvious misunderstandings to be corrected, though police officers should not go so far as to offer advice to the detainee.

Second, police should inform the detainee not only of his right to legal assistance, but also of the arrangements that may be made if he is unable to name a solicitor or is concerned about the cost of employing one. It would not be appropriate to reach a decision on question (ii) in this case. The issue comes before the Court as a reference and not as an appeal. It raises questions of fact and degree which ought properly to be dealt with by the sheriff, after hearing all the evidence on this issue. Lord Kerr would have answered both questions in the negative. No attempt had been made to discover why B had refused to avail himself of legal assistance, and therefore it was impossible to say that this was an unequivocal and informed waiver. Only in exceptional circumstances should statements made by a suspect who has not had access to a lawyer be admitted in evidence. The suggestions made by Lord Hope should be implemented as rules requiring police to obtain reasons from suspects who purport to waive their right to legal assistance. Unless one knows why the decision to waive has been made, it cannot be said to be ‘voluntary, informed and unequivocal’