APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Johnston Lord Philip Lady Cosgrove |
[2006] HCJAC 85Appeal
No: XC373/06
OPINION OF THE COURTdelivered by LORD JOHNSTON in NOTE OF APPEAL under section 74(1) of the
Criminal Procedure ( by SHAHID PERVEZ Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Burns, McSherry, Solicitor
Advocates; Hamilton Burns & Co.,
Glasgow
Alt: K. Stewart, A.D.; Crown Agent
15 November 2006
[2] It related to
the legality, or otherwise, of the second of two periods of detention by the
police undergone by the appellant under section 14 of the Criminal Procedure (
[3] The appellant
was detained lawfully on
[4] The relevant part
of the section is in the following terms:
"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.
(2) Detention under subsection (1) above shall be
terminated not more than six hours after it begins or (if earlier)-
(a) when
the person is arrested;
(b) when
he is detained in pursuance of any other enactment; or
(c) where
there are no longer such grounds as are mentioned in the said
subsection (1),
and when a person has been detained
under subsection (1) above, he shall be informed immediately upon the
termination of his detention in accordance with this subsection that his
detention has been terminated.
(3) Where a person has been released at the
termination of a period of detention under subsection (1) above he shall not
thereafter be detained, under that subsection, on the same grounds or on any
grounds arising out of the same circumstances."
[5] Lord MacLean
heard evidence and made certain findings in fact. It is sufficient for our purposes to record
that the two periods of detention related to different investigations, albeit
under an umbrella of a suspicion of an attempt to pervert the course of
justice, the first being relating to a lease and to whether it was genuine, and
the second relating to an allegation of providing a false statement to the
police in support of an invented alibi being put forward by a client of the
appellant who subsequently became a co-accused in the present case. It has therefore to be stated at once that
although the whole investigation in respect of the two periods of detention was
under the umbrella of allegations of attempt to pervert the course of justice, the
two periods related to wholly separate and different circumstances and
allegations as regards the details.
[6] Lord MacLean
determined the matter in respect on an issue of fairness, it not being
disputed, or at least alleged, that any unfairness had occurred in the course
of either interview whether by means of oppressive questioning or any other
prejudicial act. He therefore ruled the
evidence in relation to the second period of detention admissible against that
background.
[7] Mr. Burns,
solicitor advocate, appearing for the appellant, approached the matter on a
different basis, not resisting the suggestion that there had been no unfairness
in either of the interviews. His basic
position was that at the start of the first interview, or prior to it at the time
of the detention, the police had two grounds of suspicion in respect of the
appellant and, accordingly, the interviewing process should have been
restricted to one period of detention of six hours in relation to both those
suspicions. He said, applying the
Interpretation Act, that the word "offence" in subsection (1) could mean
offences and he founded strongly on the fact that in terms of subsection (3) a
person could not be detained after release at the termination of a period of
detention on the same grounds or any grounds arising out of the same
circumstances. He accordingly submitted
that the second period of detention was unlawful and the evidence arising
therefrom could not therefore be admitted.
He referred us to Grant v H.M. Advocate 1989 S.C.C.R. 618; H.M.
Advocate v McMowat 2001 S.C.C.R.
242 and
[8] It also has
to be stated that Lord MacLean does not hold emphatically that the police had
both suspicions at the outset of the process. What is much more important is that he does
draw attention to the different circumstances in each case in respect of the
detail of the suspicions.
[9] Thereafter,
quite separately, Mr. Burns went on to argue that the terms of section 14 of
the Act were not sufficiently precise and clear in relation to what a suspected
person might be reasonably bound to expect to happen to him when detained, so
as to contravene the terms of Article 5 of the Convention, such as was held to
exist in Malone v U.K. 7 EHRR 14 and R (Gillan) v The Commissioner of Police of the Metropolis 2006 2 WLR 537
referring particularly to the speech of Lord Hope of Craighead at page
588. Mr. Burns was, however, unable to
point to any authority which had successfully attacked the validity of section
14 under the Convention of Human Rights.
[10] The advocate
depute in response opened by submitting, against a background of an assumption
that the second detention had been irregular, but nevertheless, long
established law running from Lawrie v
Muir 1950 JC 19 required a court or
tribunal to balance the interests of the individual against the context of such
an irregularity with the interests of the State in relation to the detection
and successful prosecution of crime. He
therefore submitted that even if an irregularity had occurred, which he did not
accept, the absence of unfairness as found by Lord MacLean rendered the process
lawful to the extent of leaving the evidence admissible.
[12] With regard to
the issue of the devolution minute he simply submitted that the terms of
section 14 were absolutely clear. There
was a statutory requirement limiting the period to six hours and that was
sufficient to meet the terms of the Convention.
[13] We are
entirely satisfied that the argument presented by the advocate depute in
relation to the effect of subsection (3) is correct in the present case in as
much as the circumstances giving rise to the separate suspicions were different. It matters not to our mind that it was under
the general umbrella of an investigation into an attempt to pervert the course
of justice. It equally matters not, if
it is the case, that both suspicions were in the mind of the police when they
commenced the detention process. They
have a right to detain a person for six hours in relation to an alleged offence
and re-detention is only struck at if an attempt is made to re-run that initial
interview in the same context.
[14] In these
circumstances the police actions in this case with regard to the second period
of detention were entirely lawful and the appeal will be refused.
[15] That being so
it is not necessary for us to make any determination on the general issue of
the balance between irregularity of procedure and the interests of the State in
the context of fairness as was elaborated by the advocate depute. It does not seem to us to be appropriate in
this case to offer any view on those general matters which may raise
difficulties in certain contexts.
[16] We are equally
satisfied that the statutory enactment limiting the period of detention to six
hours is sufficiently clear and precise as to leave no room for any argument
under Article 5 of the Convention on Human Rights. We therefore accept the argument of the
advocate depute in this respect.
[17] For these
reasons this appeal is refused and the case will be remitted back for trial in
due course.