APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: 1736/00
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL TO THE COMPETENCY AND RELEVANCY
under section 174(1) of the Criminal Procedure (Scotland) Act 1995
GARY ALEXANDER PATON
PROCURATOR FISCAL, Alloa
Appellant: McCluskey; Wheatley & Co.
Respondent: Di Rollo, A.D.; Crown Agent
24 November 1999
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 been found at the premises without lawful authority to be there so that, in all the circumstances, it might reasonably be inferred that he intended to commit theft, in contravention of section 57(1) of the Civil Government (Scotland) Act 1982.
Before the appellant was called upon to plead his solicitor tendered a minute which sought to raise a devolution issue. The sheriff continued the case until 30 July when he heard submissions on behalf of the appellant and the respondent. Thereafter he refused the minute but granted the appellant leave to appeal.
The circumstances out of which this appeal arises are set out in the minute and were elaborated to some extent by Mr. McCluskey who appeared on behalf of the appellant. The account on which we proceed is as follows. On 19 June the police received a 999 call about an alarm sounding at the premises. When police officers went to the car park at the premises they saw the appellant walking from one side of the building. Although it was a warm evening, he was wearing a thick yellow jacket, a blue woollen tammy and black gloves. At the sight of the police vehicle he began to run. He was chased by police officers to a back garden. When they caught up with him he was still wearing the same clothes, but had put on a baseball cap in place of the tammy. At about 9.40 p.m. he was detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995. When he was searched a metal socket was found in a rear pocket of his jeans. He was taken to a police station. While he was there he indicated that he wanted to have a solicitor informed. At about 10.05 p.m. the police left a message on an answering machine at the home of his solicitor in which he was informed that the appellant had been detained and was at the police station. At about 11.50 p.m. the appellant was interviewed after being cautioned and without his solicitor being present. When he was asked to explain what he was doing near the premises he said that he had been trying to break in. He added that he had been wanting something to sell in order to get drugs. When he was asked what had stopped him getting in, he said that it was his hearing the police coming round the corner. He said that he had not used the socket. At about 1.27 a.m. on the following morning he was arrested. Thereafter his solicitor was informed personally by a telephone message from the police. The appellant was not charged until 7.40. At that stage he said in response that he had been merely passing by when he was chased by the police. He had been going to "tap" someone for a fiver.
At the outset there are two matters which we can deal shortly. First, in this court, unlike the Sheriff Court, it was not in dispute that the minute contained sufficient detail to enable the court to determine whether a devolution issue arose. Secondly, it was not in dispute that the appellant was able to point to an "act" of the Lord Advocate within the meaning of section 57(2) of the Scotland Act 1998. The Advocate depute did not dispute Mr. McCluskey's submission that this could be satisfied in this case by the prospective acts of the procurator fiscal, as representing the Lord Advocate, in continuing with the prosecution, such as by seeking to lead evidence as to the statement made by the appellant at the interview which began at 11.50 p.m. on 19 June.
The submission made by Mr. McCluskey on behalf of the appellant was that such an act of the Lord Advocate would be incompatible with his Convention rights, namely his right under Article 6(1) to a "fair and public hearing", and under Article 6(3)(c) "to defend himself in person or through legal assistance of his own choosing...". The Advocate depute did not dispute that the latter provision was apt to cover the stage at which the appellant had been detained by the police.
Mr. McCluskey pointed out that under the law of Scotland a person such as the appellant who had been detained under section 14(1) and had been taken to a police station had the right to have intimation of his detention and of the police station sent to a solicitor. He was to be informed of this entitlement on his arrival at the police station (section 15(1)(b) and (2)(a)). However, it was important to note that this did not confer any right on the person detained to have access to the services of a solicitor before he was interviewed. The police had a discretion to allow or refuse such access. In Imbrioscia v. Switzerland (1993) 17 E.H.R.R. 441, the European Court of Human Rights at para. 38 observed that in ascertaining whether the method chosen by a Contracting State to give effect to the right conferred by Article 6(3)(c) was consistent with the requirements of a fair trial, it had to be remembered that the Convention was designed to "guarantee not rights that are theoretical or illusory but rights that are practical and effective". Mr. McCluskey submitted that the criminal justice system should not be dependent on whether or not goodwill was shown. He also pointed out what an accused said at a police interview would not be admissible as evidence of the truth unless it incriminated him to some extent. The fact that a solicitor was not present at the interview had not been regarded in the past as fatal to the admissibility of evidence about incriminating statements made by the accused. It was merely one of a number of factors which was relevant to the question whether the statements had been fairly obtained and, and hence were admissible (H.M. Advocate v. Cunningham 1939 J.C. 61 at pages 67-68; and H.M. Advocate v. Fox 1947 J.C. 30 at page 31).
It was true that in the present case the appellant had not asked that his solicitor should be present. However, he had availed himself of his statutory right to have his solicitor informed. The complaint was that he had not been told that he was entitled to have his solicitor present, if he so wished. A further complaint was that, even if he had asked that his solicitor should be present, the police were under no duty to accede to that request and would normally have refused it. As to the latter point he relied on his understanding of the experience of the appellant's solicitor who had the largest practice in criminal cases in Alloa.
Mr. McCluskey went on to point out the significance of the statement which the appellant made to the police. This had displayed special knowledge. Without that evidence the Crown would be unable to establish the allegation that he had attempted to break into the premises with intent to steal. As regards the alternative charge, it appeared that the Crown would be able to establish the inference that he intended to commit the theft at the premises, but the appellant's ability to support what Mr. McCluskey referred to as the "statutory defence" - namely that he had lawful authority to be there - had been seriously prejudiced by the absence of the solicitor.
In these circumstances he maintained that there had been a breach of the requirement of Article 6(3)(c), and that this gave rise to an inference that the appellant could not have a fair trial.
The challenge to the actings of the Lord Advocate in the present case can on one view be regarded as, in effect, a challenge to the admissibility of the evidence of the statement made by the appellant when he was interviewed at 11.50 p.m. on 19 June. Mr. McCluskey accepted that this was implied in his submissions. At the same time he accepted that the admissibility of evidence was primarily a matter for regulation by the national law of the Contracting State and that, as a rule, it was for the national courts to assess the evidence before them (Asch v. Austria (1991) 15 E.H.R.R. 597).
It is important, in our view, to bear in mind that in Scotland questions of admissibility are resolved in the course of the trial. It is open to the accused to take objection and to adduce evidence in support of that objection. It is open to the judge and to the jury to consider whether the statement was fairly obtained. If the accused is convicted the admissibility of the evidence can be the subject of an appeal. The Advocate depute said that there might be a situation in which it was incontrovertible that the evidence which was critical to the Crown case was inadmissible. He accepted that in that situation the point could be dealt with in advance, since otherwise it would be oppressive for the trial to proceed. However, he submitted - and in our view entirely correctly - that the present case was not of that character. The admissibility of the evidence as to the statement depends on the evidence which is led in the case and the importance which is attached to the factors which are relevant to the question of fairness. In these circumstances we are satisfied that it would be entirely premature and inappropriate to seek to resolve the question of admissibility at this stage.
The main question which we have to consider at this stage is whether the appellant has shown that he cannot receive a fair trial. Prior to the advent of devolution, the courts in Scotland required to consider such a question when it was maintained on behalf of an accused that by reason of some factor, such as delay or pre-trial publicity, he could not receive a fair trial and hence it was oppressive for the proceedings to continue. With the coming into operation of section 57(2) of the Scotland Act 1998, the court now has to take into account the various rights which are comprehended in Article 6 of the Convention in deciding that question.
From the decisions of the European Court of Human Rights and of the European Commission of Human Rights, to which we were referred, we can derive the following propositions:
(1) The right set out in Article 6(3)(c) is one element among others of the concept of a fair trial in criminal proceedings to which Article 6(1) relates (Imbrioscia v. Switzerland, para. 37).
(2) Article 6, including para. (3)(c), applies throughout, including at the stage of preliminary investigation (Imbrioscia v. Switzerland, para. 36; Murray v. United Kingdom (1996) 22 EHRR 29, para. 62).
(3) Article 6(3)(c) does not specify the manner by which the right to "defend himself in person or through legal assistance of his own choosing..." is to be exercised. It is left to the Contracting State to choose the means of ensuring that it is secured. In considering whether the methods chosen are consistent with the requirements of a fair trial it has to be remembered, as we have already noted, that the Convention is designed to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The European Court in Imbrioscia at para. 38 also said:
"In addition, the court points out that the manner in which Article 6(1) and (3)(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 - a fair trial - has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case".
(4) Article 6(3)(c) does not state expressly, but it implies, the right of an accused to communicate with his lawyer as a fundamental part of the preparation of his defence (Windsor v. United Kingdom Application No. 13081/87).
(5) However, that right cannot be said to be unsusceptible of restriction. If the accused has been questioned without his solicitor being present, the question is whether this is in conformity with the general principle of fairness laid down in Article 6(1) (Windsor v. United Kingdom; Robson v. United Kingdom Application No. 25648/94).
It is clear from the above, as Mr. McCluskey accepted, that Article 6(3)(c) does not create a universal right in an accused to have access to his solicitor before or during questioning by the police. That there are cases in which this may be essential in order that the concept of fairness can be satisfied is demonstrated by the decision of the European Court in Murray v. United Kingdom. Its circumstances were unusual in respect that the trial judge decided, as he was entitled to do under legislation relating to the prevention of terrorism, that an adverse inference should be drawn from the fact that the accused had elected to remain silent while he was questioned by the police. The accused had also been denied legal advice for 48 hours during which he had not answered their questions. At para. 66 the court observed:
"To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is - whatever the justification for such denial - incompatible with the rights of the accused under Article 6".
That case is far removed from the present. In Scotland no adverse inference can be drawn from the fact that an accused person was silent when he was questioned by the police (Robertson v. Maxwell 1951 J.C. 11). Further, as was pointed out by the Advocate depute, the absence of a caution is likely to imperil the admissibility of anything said in response to a police officer who is exercising his power under section 14(7) of the 1995 Act to question the person detained in relation to the suspected offence (see Tonge v. Her Majesty's Advocate 1982 S.C.C.R. 313). The limited provision which was made by section 15(1)(b) for the informing of a solicitor derived from the recommendations of the second report by the Thomson Committee on Criminal Procedure (paras. 5.08 and 7.16). The committee recommended that it should be a matter of police discretion whether to allow a detainee an interview with his solicitor. The Advocate depute also pointed out that, in accordance with well-established practice, a person who wanted to make a voluntary statement would be informed that he was entitled to consult with a solicitor, and his statement would be taken by police officers who were unconnected with the investigation. Safeguards against the admission at the trial of evidence which had been unfairly obtained were provided. In the circumstances, he submitted, it was not possible to reach a conclusion that the appellant could not receive a fair trial.
In regard to the question whether the appellant can receive a fair trial, what was the practical effect of the fact that the solicitor was absent at the time when the appellant was being questioned by the police? We note that the appellant did not request that his solicitor should be present when he was questioned. Neither Scots law nor the Convention require that in all cases the person who is detained should be afforded the opportunity to have his solicitor present. We are not persuaded that the absence of the solicitor had a decisive effect upon the preparation of the appellant's defence. We do not accept the assertion that the appellant was prejudiced in regard to what was called his "statutory defence". It is clear from cases such as Moran v. Jessop 1989 S.C.C.R. 205 that there is an onus on the Crown to lead evidence which is such as to support the prima facie inference that the appellant had no lawful authority to be where he was found. In any event there is no question of the appellant being unable to avail himself of the services of a solicitor after he had been arrested. If so advised, he could have made a voluntary statement in order to explain the circumstance in which he came to be where he was found. The question whether a fair trial can be achieved depends not simply upon what happened during the preliminary investigation but on the whole proceedings. As we have already observed there are a number of safeguards both during that investigation and during the trial of the appellant. We are unable to affirm the view that, despite them, no fair trial could take place in the circumstances of the present case.
Accordingly the appeal is refused and the case will be remitted to the sheriff to proceed as accords.