APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Philip
Lord Penrose
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[2007]
HCJAC35
XC712/06
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OPINION OF THE COURT
delivered by LORD MACFADYEN
in
APPEAL
Under section 74 of the Criminal Procedure (Scotland) Act 1995
by
GRANT
JONES
APPELLANT;
against
HER
MAJESTY'S ADVOCATE
RESPONDENT
___________
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Act: Nicolson; Wilson McLeod.
Alt: Young, A.D.; Crown Agent.
1 June 2007
Introduction
[1] The appellant
was indicted at the instance of the respondent on two charges, of theft by
housebreaking and wilful fireraising. He
lodged a minute under section 71(2) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") objecting
to the admissibility of evidence of what he said when interviewed by the
police. A preliminary diet to deal with
that minute took place before the sheriff at Edinburgh on 1 and 2 October
2006. Evidence was led from the two police
officers, PC Gordon Couper and PC David Black, who interviewed the appellant,
and submissions were made on behalf of the appellant and the respondent. The sheriff repelled the objection raised in
the minute. Leave to appeal was granted.
Section 14
[2] The issue
raised by the appellant involves the construction of section 14 of the 1995 Act. That section regulates "Detention and
questioning at police station". It
provides inter alia as follows:
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"(1)
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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 ―
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(a)
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into the offence; and
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(b)
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as to whether criminal proceedings should be instigated
against the person,
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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.
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(2)
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Detention under subsection (1) above shall be terminated
not more than six hours after it begins or (if earlier) ―
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(a)
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when the person is arrested;
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(b)
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when he is detained in
pursuance of any other enactment; or
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(c)
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where there are no longer such grounds as are mentioned in
the said subsection (1),
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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.
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...
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(7)
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Where a person is detained under subsection (1) above, a
constable may ―
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(a)
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without prejudice to any relevant rule of law as regards
the admissibility in evidence of any answer given, put questions to him in
relation to the suspected offence; ..."
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The circumstances
[3] On 13
March 2006
PC Couper spoke to the appellant about a matter unrelated to the charges with
which this appeal is concerned. The
appellant implicated another youth, TMcC, in that matter. The following day, PCs Couper and Black were
engaged in investigating the related charges of housebreaking and fireraising
mentioned respectively in charges 1 and 2 of the present indictment. At 13.20 hours that day, other officers
detained TMcC in connection with the fireraising. At 14.05 PCs Couper and Black detained the
appellant under section 14 of the 1995 Act.
He was detained in respect of the housebreaking charge (Charge 1). The six hour maximum period of detention
available under section 14 thus began at that time. He was taken to Drylaw Police Station, where
the detention procedure was completed and he was cautioned.
[4] Because TMcC
had been detained first and was a juvenile, PCs Couper and Black decided to
interview him first. The attendance of a
parent had to be arranged. Between 16.45
and 17.30 hours, the interview with TMcC took place. When the officers released TMcC, he informed
them of stolen property relevant to their inquiries, which was said to be in
the appellant's house.
[5] Following the
interview with TMcC, PCs Couper and Black carried out some research on the
police computer prompted by information provided by him. They then regarded it as a matter of priority
to search the appellant's house for the stolen property alleged to be
there. They searched the house with the
consent of the appellant's mother, and found the stolen property. They then returned to Drylaw Police Station,
and had something to eat before commencing an interview with the appellant.
[6] The interview
began at 19.30 hours. The appellant was
duly cautioned. He was questioned first
about a break-in at a school on 22 February 2006.
That was the matter on which information had been obtained from
TMcC. At 19.35 hours the appellant was
arrested in respect of the school break-in.
Normal arrest procedures were carried through and the appropriate forms
were completed.
[7] Between 19.35
and 20.40 hours, as a result of information about other crimes provided by the
appellant, the officers took the appellant out in a police vehicle so that he
might identify the loci of those
other crimes.
[8] At 20.40
hours, the appellant was again interviewed under caution. He was shown the property retrieved from his
house and admitted that he had obtained it from the school. He was then questioned about the
housebreaking and fireraising with which the present indictment is
concerned. At 21.00 hours he was
cautioned and charged with those offences.
[9] PCs Couper
and Black proceeded on the view that the appellant's detention under section 14
came to an end at 19.35 hours when he was arrested in respect of the school
break-in. The appropriate forms were completed
in accordance with that view. They
regarded his status, when asked questions about the charges in the present
indictment, as being that of a person under arrest in respect of another
matter.
The appellant's
submissions
[10] The primary
submission advanced on the appellant's behalf was that the interview conducted
between 20.40 and 21.00 hours was unlawful, because by then he had been
detained for over six hours. The
detention which commenced at 14.05 hours was not brought to an end by his
arrest at 19.35 hours in respect of the school break-in. The reference in section 14(2)(a) to
detention terminating when the detainee is arrested should be narrowly
construed as relating to arrest in respect of the matter for which he had been
detained. Section 14 detention was thus
not terminated by arrest on another matter.
The purpose of section 14 was to protect the detainee by placing a time
limit on interrogation. To interview a
detainee after the expiry of the six hour maximum period of detention was to
deprive the detainee of that protection.
The power to interview a detainee conferred by section 14(7)(a) expired
on the expiry of the six hour period, and it followed that to interview a
detainee after that time was unlawful.
[11] Mr Nicolson,
for the appellant, cited a number of authorities in the course of his
submissions, but accepted that none of them directly supported the contention
which he advanced. We do not find it
necessary to discuss these cases.
[12] The secondary
submission advanced in the Minute before the sheriff and in the Note of Appeal
was that, if the interview was lawful, it was unfair because of the procedures
adopted by the police. Mr Nicolson did
not elaborate that submission.
The Crown submissions
[13] The Advocate
depute submitted that in the present case the detention period ended before the
interview at 20.40 hours took place. It
was brought to an end by the arrest of the appellant in respect of the school
break-in. There was no reason to
construe section 14(2)(a) as referring only to an arrest in respect of the same
matter as was the subject of the detention.
If it was not brought to an end by the arrest at 19.35 hours, it
came to an end on the expiry of the six hour period at 20.05 hours. The appellant was therefore not under
detention at the time of the interview.
That, however, did not mean that the interview was unlawful. Section 14(7)(a) established the lawfulness
of questioning a detainee while he is detained, but it has no bearing on the
lawfulness of questioning a person who is not under section 14 detention. Section 14 conferred no right not to be
questioned outwith the detention period.
The questioning of the appellant after 20.40 hours was lawful. There was nothing in the circumstances to
make it unfair.
Discussion
[14] The
appellant's submissions are not well founded.
As a matter of construction of section 14(2), we see no reason to read
the reference to arrest in paragraph (a) as a reference only to arrest in
respect of the same matter as the detention.
Section 14(2) limits the period of detention to a maximum of six
hours. It then lists three circumstances
which may bring detention to an end after a shorter period. One of these is arrest, and it seems to us
clear that the intention is that arrest, which provides an alternative
justification for interference with the liberty of the subject, should bring
detention to an end, whatever the reason for the arrest may be.
[15] In any event,
in the present case, if the appellant's detention had not come to an end when
he was arrested, it would have come to an end at 20.05 hours on the expiry of
the six hour period. On any view,
therefore, he was no longer subject to detention after 20.05 hours.
[16] The result of
these considerations is that, when he was interviewed at 20.40 hours, the
appellant was no longer a detainee under section 14, and the provisions of that
section have no relevance to the lawfulness of the interview. At that time, he was under arrest for another
matter. He was thus lawfully in police custody. He remained entitled to protection from
unfair questioning, but there is no basis in section 14 for saying that the
interview was unlawful.
[17] As we have
already mentioned the Minute presented to the sheriff and the Note of Appeal
advanced an alternative argument that because of the way the police conducted
matters before, during and after the detention period the interview was
unfair. That contention was not
elaborated upon in oral submission.
There is in our opinion no merit in it.
We have set out in some detail the sequence of events, and there is
nothing in it to support an inference that the police acted unfairly.
Result
[18] For the
reasons which we have given we shall refuse the appeal and remit to the sheriff
to proceed as accords.
[19] The Advocate
depute moved us to extend the time bar to 9 July 2007 to enable the trial diet to
proceed. We granted that motion.
