Scottish High Court of Justiciary Decisons

	[2011] HCJ 117 OPINION OF LORD BONOMY in MINUTE BY THE ACCUSED IN TERMS OF SECTIONS 72(6)(b)(i) and 79(2)(b) OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 in causa HER MAJESTY'S ADVOCATE against T _____________

Minuter: Connor; Nicol, Harvey & Pierce, Stranraer

Respondent: Niven Smith AD; Crown Agent

23 August 2011

The Issue

[1] At the preliminary hearing in this case at Glasgow on 23 August 2011 there was before the Court a minute at the instance of the accused in terms of section 72(6)(b)(i) and 79(2)(b)(iv) of the Criminal Procedure (Scotland) Act 1995 objecting to the admissibility of Crown productions nos 3 and 5 and Crown label nos 4 and 5, being the transcripts and audio tape recordings of the police interview of the accused on 29 September 2010. There was an associated devolution minute to the effect that, were the Crown to elicit evidence of the interview, that would amount to an act incompatible with the right of the accused to a fair trial in terms of article 6 of the European Convention of Human Rights and would render the trial unfair. Since the Advocate depute proposed to lead evidence in opposing the minute, I continued the preliminary hearing to the earliest convenient date, viz 30 August 2011, when the matter was fully debated both before and after evidence was led by the Advocate depute from three police officers.

[2] The objection stated is encapsulated in the fourth paragraph of section 2 of the minute in the following terms:

"The Minuter was interviewed in relation to a serious charge. The Minuter was interviewed without having had access to legal advice. The Minuter was not granted access to legal advice prior to said interviews, nor during it. The Minuter was not advised that it was in his best interest to obtain said advise prior to being interviewed by the police. The Minuter was not advised that he was entitled to obtain legal advise from a solicitor prior to being interviewed in respect of said charge".

The objection was based on certain propositions from the Opinion of the Lord Justice Clerk, concurred in by the other judges, in the full bench decision in Jude, Hodgson & Birnie v HM Advocate [2011] HCJAC 46, amplified by reference also to certain propositions in Pfeifer & Plankl v Austria (1992) 14 EHRR 692, particularly paragraphs 37 and 38, Pishchalnikov v Russia, application no. 7025/04, European Court of Human Rights, 24 September 2009, and Saman v Turkey, application no. 35292/05, European Court of Human Rights, 5 April 2011. The charge facing the accused is one of assault and rape. Evidence from the interview is essential to corroborate penetration.

[3] The interview took place on 29 September 2010. At that time the case of Cadder v HM Advocate [2010] UK SC 43, [2010] SCCR 951 had been heard in the Supreme Court but no decision had been given. However, guidelines issued by the Lord Advocate applied and the interviewing officers purported to follow these. The relevant guidelines were contained in the Revised Interim Guidance issued on 7 July 2010, which included the following provisions:

"5. Where the SIO (Senior Investigating Officer) determines that interview of a suspect is necessary the suspect should be invited to nominate a solicitor who can be contacted on his behalf. The suspect should be advised that he or she can have a consultation in person with a solicitor in advance of the interview.

6. In the first place, the suspect should be permitted to speak privately to the solicitor by telephone to provide instructions to the solicitor and receive advice and in particular to assist the suspect in deciding whether he or she wishes the solicitor to attend in person at the police station.

...

7. Where a suspect has indicated that he wishes face to face access to a

solicitor in advance of interview, and there is no other bar to such access,

facilities should be made available for a private consultation to take place

between the solicitor and the suspect, prior to any interview unless it is

considered that there are compelling reasons why this should not be

permitted .......".

The principal submission of Miss Connor, counsel for the accused, was that in the circumstances of this case the accused was not put in a position where he could make an informed decision whether or not to take advantage of the opportunity of obtaining legal advice prior to the interview. In light of that it could not be said that declining the opportunity amounted to waiver of the right to legal advice. She relied in particular on paragraph 32 of the Opinion of the Lord Justice Clerk in the case of Jude, Hodgson & Birnie which is in the following terms:

"[32] I accept the submission for the Crown that the rights of a detainee or of an accused person under article 6 are capable of being waived (Cadder, supra, at paras 47 and 96); but in my opinion the argument for the Crown fails in each case for two reasons; namely (i) because the law at the time did not allow the accused to have access to a lawyer at that stage of pre-trial procedure; and (ii) because the appellant's consent to be interviewed in each case was not informed by legal advice.

[33] ....

[34] Furthermore, a valid waiver can proceed only on the basis of an informed decision. Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had no reason to think that he had any such right and had not had access to legal advice on the point (cf Millar v Dickson 2001 SCCR 741; Pfeifer and Plankl v Austria (1992) 14 EHHR 692; Pishchalnikov v Russia, application no. 7025/04, 24 December 2009).

At one point Miss Connor appeared to be suggesting that it would be extremely difficult to establish waiver in the absence of an actual consultation between accused and solicitor and suggested that there was support for that proposition in the last part of paragraph 32 and paragraph 34. She also pointed to the facts of the cases of Hodgson & Birnie, narrated at paragraphs 19 and 20 of the Lord Justice Clerk's opinion, as providing further support for that view.

[4] I am satisfied that the Lord Justice Clerk did not mean to suggest that it was only following upon a consultation between accused and solicitor about the merits of having legal advice or assistance in connection with an interview that the accused could effectively waive his right to have that advice prior to and during the interview. That would give the accused who rejected outright the opportunity of advice the power of veto over whether or not he should be interviewed. It also seems basically illogical to require that an accused should take legal advice about whether he should take legal advice. It would conflict with the right of any accused person to conduct his trial and all pre-trial procedure in person. It would also involve an unwarranted imposition upon individual accused of ordinary intelligence. I am satisfied, particularly from the terms of paragraph 34, that what is required is that the accused is clearly advised of his right to take legal advice prior to being interviewed. The emphasis is on providing "access" to legal advice and giving the accused appropriate information to enable an "informed" decision to be made.

The Evidence

[5] The Advocate depute led the evidence of three detective constables involved in the investigation, who attended at the home of the accused along with a scenes of crime officer on 29 September 2010 at around 12.20pm. Miss Connor called no witnesses. Significant parts of her cross-examination, particularly of Detective Constable Mark McHattie who was the first witness, involved assertions about events which were not accepted by the witnesses.

[6] The alleged offence being investigated then, and now the subject of the one charge in the indictment, occurred during the night of 25 into 26 September 2010. By the morning of 29 September 2010 attention had focused upon the accused as the suspected perpetrator. Detective Constable Elaine Whitby obtained a warrant to search the private living area of the locus, and, following a briefing of officers who had taken up duty that morning, attended with Detective Constables Mark McHattie and Thomas William Dingwall, as well as a scenes of crime officer by the name of Ryder, at the premises at about 12.20pm. The private living area was examined and photographed by Ryder in the presence of Whitby, while McHattie and Dingwall escorted the accused, who had agreed to attend voluntarily, to the Police Office. The paperwork referred to in the evidence recorded the accused as being at the Police Office at 13.10 and the interview as commencing at 13.33. The interview was conducted by Whitby and McHattie. The evidence focused upon events during that period and earlier at the Crown Hotel.

[7] McHattie gave evidence of arriving at the locus with his three colleagues at 12.20pm. He said that Whitby showed the accused the warrant and told him that he required to be interviewed in relation to an allegation of a sexual offence. He was invited to attend on a voluntary basis. What that involved was explained to him and he agreed to attend at the Police Office on that basis. He completed a declaration of voluntary attendance form at 13.15. The form was a pro forma which included the phrase "to be interviewed in connection with an offence of ".

That had been completed by a civilian custody officer as "SUSPECTED OF CRIME". McHattie said that that was an error. If he had been completing the form he would have put "RAPE". He and Dingwall had countersigned the form apparently without checking that. It was McHattie's recollection that when he was taken to the charge bar area the accused was again informed of the nature of the allegation against him. He was sure that Dingwall told him the allegation was one of rape. (Dingwall later said he had no recollection of doing so). When asked to describe the accused's demeanour at that point, McHattie said that he was upset and was crying.

[8] A solicitor access recording form was completed by Dingwall. In the course of doing so he read out a statement from the foot of page 1 of that form in the following terms:

"Statement to be read to suspect

'I must advise you that you can have a consultation in person with a solicitor in advance of an interview. In the first instance you will be permitted to speak privately by telephone with your nominated solicitor/Duty Solicitor/PDSO Solicitor. Do you with to consult privately with a solicitor by telephone?'".

The accused declined and that response was recorded. McHattie described the accused as visibly upset and shaking when this form was being dealt with. He asked: "Do I need a solicitor?" McHattie told him that it was his legal right to speak on the phone to a solicitor before the interview took place. If he decided against but changed his mind at anytime, he could have a consultation. The accused responded that he hadn't done anything wrong.

[9] McHattie confirmed that there was nothing about the physical or mental state of the accused to indicate that he was not fit to be interviewed. The interview began at 13.33. At the outset the accused was asked to confirm that he had signed a form that he was there on a voluntary basis, and understood that, and that he was offered a private consultation with a solicitor and turned that down.

[10] The accused was then cautioned by Whitby in the following terms:

"Okay I am going to ask you questions in relation to a sexual offence, namely a rape. You don't need to say anything. I will note down and it will be recorded on these tapes here anything you do say okay and it may be used in court at a later date. Do you understand that?"

His initial response indicated that he did not entirely understand. Whitby then explained:

"No, what I have read out there that you don't have to answer any questions and, I am going to ask you questions but you don't have to answer them".

In response to that the accused said:

"It means I can say no comment or, "

Whitby then added:

"Right okay, ehm obviously understand that they will be recorded here, the tape's already in and that it may be used in evidence at court at a later date, do you understand that?"

The accused stated that he understood. When the allegation that he had sex with the complainer without her consent on Saturday 25 September 2010 was put to him, he responded that that was lies. Later in the interview he acknowledged that he did have intercourse with her.

[11] McHattie had no recollection of the accused asking to consult a solicitor during the interview. If he had done so, the interview would have been suspended. That happened in practice in other cases. During the interview the accused answered all questions asked.

[12] In cross examination McHattie accepted that Whitby may well have told the accused that they wanted to speak to him about an incident on Saturday night, although he could not recollect her saying these words. However he was clear that she did tell him that they wanted to speak to him about a sexual offence. No one mentioned rape to the accused or to his father. McHattie confirmed that no one asked the accused why he had decided not to have a consultation with a solicitor and that there was no place for him to append his signature to confirm that he had declined the opportunity. He confirmed that the accused had at that stage asked whether he needed a solicitor. He could not recall him saying: "I'm here on a voluntary basis; what would I need a solicitor for?" The accused was upset at the charge bar and began crying in the interview when he was told that the allegation was one of rape. He was also upset at the end of the interview. Although there was nothing on the form to record the accused being told that if he changed his mind and wanted a solicitor he could have a consultation with a solicitor, that had been said to him after he was told that the decision was one he had to make for himself.

[13] In re-examination McHattie confirmed that, when the allegation of rape was put to the accused, there was no reaction from him other than to say that he understood.

[14] Detective Constable Dingwall confirmed that he was one of the four who attended at the locus. He said that Whitby had a search warrant which was shown to the accused's father who went and got the accused. Whitby and McHattie spoke to him. The witness was not in earshot. He later learned that the accused was willing to attend on a voluntary basis for interview at the Police Office. He then accompanied the accused and McHattie to the Police Office. He was present at the custody area when the forms were completed. The accused was then escorted to the detention area for interview. The witness understood that the accused's attendance was in connection with a sexual offence. He was sure that Whitby would have told him that at the locus. However, that was not said to him in his presence and he had not explained that to the accused. So far as the voluntary attendance form was concerned, he would have expected that to record that the attendance was in respect of an offence of "RAPE".

[15] He confirmed that he read out the statement at the foot of the first page of the solicitor access recording form. The accused said that he did not want a solicitor and that he had done nothing wrong. He was upset when the form was being completed. In fact he had been upset and crying from the point at which they left the locus when it had been explained to him what was involved. In response to the question whether he wished to consult with a solicitor, the accused turned to McHattie and said: "What do you think?". McHattie told him that he could not advise him; it had to be his choice; but if he changed his mind he could have one notified later on. There was no provision on the form to record that conversation. The accused was still upset when the witness last saw him prior to the interview and was still very upset when he left.

[16] In cross-examination the witness said that the solicitor access recording form had since been revised so that, if a consultation was declined, it could be recorded that the suspect was happy to continue and that it had been explained that if he changed his mind he could have a consultation.

[17] Detective Constable Whitby was effectively in charge when the four officers attended at the locus. She explained that they first met the accused's father and that she told him in general terms the purpose of their enquiry. She told him that an allegation had been made against her son and that they wanted to speak to him. He got his son. She then informed the accused that there had been an allegation made against him of a sexual nature that had occurred on the premises. She did not recollect if information was given to him about the date, the circumstances, the location or the personnel involved. He was asked to come to the Police Office as a voluntary person. She stated that she would say that that was in order to be interviewed about the allegation. He appeared to be nervous. He led her and the scenes of crime officer to his private quarters. She remained with the scenes of crime officer at the locus while the accused was conveyed by McHattie and Dingwall to the Police Office.

[18] When the scenes of crime officer had completed taking photographs, she returned to the police office and in particular to the custody area to interview the accused. She was told that he had declined a private consultation with a solicitor. The early passages in the transcript, referred to in my record above of the evidence of McHattie, were discussed with her. She said that, if he had chosen to change his mind at any stage, then the police would have dealt with his request. She thought that the way things have developed it would be appropriate to say to the suspect in the course of the interview that, if there was a change of mind, the suspect could have a consultation.

[19] In cautioning the accused she advised him that the allegation was one of rape. She did not think that rape had been mentioned at any earlier stage. She had not mentioned it at the locus when his father was present, since she did not think that it was fair to give full details to the father before speaking to the son or in the presence of the father. She could not remember if his demeanour had changed when he was told it was rape. She acknowledged that on page two of the interview it was not clear that he had understood the caution fully, but said that that changed immediately after in the exchange which I have also referred to above. There was nothing about his physical or mental state to indicate that it was inappropriate to interview him.

[20] In cross-examination Whitby confirmed that in the caution there was no reference to anything he said being used in evidence "against him" nor any reference to information possibly being used to his detriment. The witness could not remember if she had said that she wanted to speak to him about an allegation against him or an incident that they wanted to speak to him about when she first spoke to him at the locus.

The Submissions

[21] Miss Connor did not seek to address me on what evidence I ought not to accept. Her principal submission was that the evidence taken as a whole indicated that the accused had not been provided with a sufficient basis for making a reasoned, valid, informed judgment as to whether to be interviewed without first consulting a solicitor. It was clear, she submitted, that he had no idea of the significance of obtaining legal advice in advance of the interview. She founded particularly on views expressed by the Second Section of the European Court of Human Rights in the case of Saman v Turkey. That case involved an illiterate accused whose understanding of the Turkish language was such that an interpreter ought to have been provided but was not. By then the law regarding access to a lawyer in Turkey had changed post Salduz, and the question was whether the accused had validly waived her rights. Miss Connor relied on statements by the court in paragraphs 33-35 about the requirements of a valid waiver. The relevant propositions are as follows:

"33. The court recalls that the right to counsel, being a fundamental right among those which constitute the notion of fair trial and ensuring the effectiveness of the rest of the foreseen guarantees of Article 6 of the Convention, is a prime example of those rights which require the special protection of the knowing and intelligent waiver standard. It is not to be ruled out that, after initially being advised of his rights, an accused may himself validly waive his rights and respond to questioning. However, the court strongly indicates that additional safeguards are necessary when the accused declines the right to a counsel, because if an accused has no lawyer he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected. (See Pishchalnikov, cited above, para 78). ....

35. Against this background, and taking into account its finding that the applicant had an insufficient knowledge of Turkish, the Court considers that, without the help on an interpreter, she could not reasonably have appreciated the consequences of accepting to be questioned without the assistance of a lawyer in a criminal case concerning the investigation of particularly grave criminal offences. ...Consequently, it cannot find that the applicant waived her right to a lawyer in a knowing and intelligent way. Furthermore, the Court considers that additional protection should be provided for illiterate detainees with a view to ensuring that the voluntary nature of a waiver is reliably established and recorded. In the present case, however, no specific measures of this kind were envisaged".

Miss Connor suggested that an example of additional safeguards that ought to have been in place in this case was a written record of reasons given by the accused for declining the opportunity of a consultation. She also founded upon the judgment of Lord Brown in Cadder at paragraph 108 where he stressed the importance of an accused having the opportunity to consult a solicitor so that he may be advised not merely of his right to silence but also whether in fact it is in his own best interests to exercise it by saying nothing at all or by making some limited statement.

[22] In response the Advocate depute invited me to distinguish Saman on its facts; the accused there was illiterate and without an adequate knowledge of the language being used. He suggested that this very hearing was an example of a safeguard for the protection of the accused. However, I am satisfied that that is not the sort of safeguard that the European Court had in mind in referring to "additional safeguards". He invited me to conclude from a review of the whole circumstances that the accused waived the right to a consultation in the full knowledge that the purpose of his voluntary attendance was to be interviewed in connection with a sexual offence which was obviously a serious matter.

The Decision

[23] The conclusion I reached was that the evidence led by the Advocate depute established that the accused chose to waive the right to consult with a solicitor in the full knowledge of the gravity of his position. I considered that he did so, in the words of Saman, "in a knowing and intelligent way". It was not submitted to me that there was any reason why I should reject any particular evidence. The crucial facts on which I was satisfied are these. The accused was told at the locus that the inquiry related to an allegation that he had committed a sexual offence. I was not satisfied that any officer mentioned rape prior to the interview. If any further indication of the gravity of the matter was required, then it was provided by the very fact that four officers attended with a warrant seeking to interview him and to search his private premises. There was no indication in the evidence of any pressure being placed upon the accused. Rather Miss Connor relied on the process possibly being conducted on an over casual basis. In that regard she pointed to evidence that there was a good relationship between the police and the accused's father. However, no evidence emerged to indicate that anything was done to create a false impression that this was a minor or casual matter. I rejected the submission made by Miss Connor that a fairer way of bringing home to the accused the gravity of his situation would have been to handcuff him. The accused's anxious and tearful demeanour demonstrated that he was conscious of the gravity of his position. When the offer of a consultation was made he clearly considered it, asked for advice and then made his decision. When rape was mentioned in the course of the interview, he did not react with surprise or give the impression that he had been misled in some way. When it appeared at an early stage in the interview that he did not fully understand his rights as explained, the position was clarified to his satisfaction. The terms of the caution administered made it plain, in my opinion, that he did not require to answer questions and that anything he said would be used in evidence. That was a clear indication of the possibility of court proceedings in respect of the allegation. I did not accept the submission made by Miss Connor that it was necessary, in order to make the position clear, to say that anything said might be used to his detriment or words to that effect. The evidence of McHattie and Dingwall was clear that the accused was told that, if he changed his mind, he could then request a consultation. That material taken together established that the decision to proceed without a consultation was an informed decision.

[24] Miss Connor submitted that it was clear from the interplay between the police officers and the accused that the accused had no idea of the significance of legal advice. In my opinion he was aware that the opportunity to consult a solicitor was regarded as an important matter. It was the subject of a separate form from which a passage was read to him. It is entirely possible that he was unaware of exactly how such a consultation would proceed and what approach any solicitor might take to advising him. However, understanding the significance of consulting a solicitor and taking an informed decision about it does not require knowledge of the way in which professional practice of solicitors is conducted. It is sufficient that the accused knows that the purpose of the exercise would be the provision of legal advice from a professional legal practitioner. That the opportunity to take such advice was available was plainly understood by the accused. For these reasons I repelled the objection and dismissed the Devolution Minute.

[25] Miss Connor invited me to grant leave to appeal. She explained that the case of Jude & Others was due to be heard in the Supreme Court in an appeal at the instance of the Crown in October and anticipated that consideration would be given then to matters that might have a bearing on the circumstances of this case. It was a difficult matter of law on which the last word had not yet been spoken.

[26] I refused leave to appeal. I did not consider that the present case was a narrow one on its facts. I was also not persuaded that there was any reason to think that the outcome of the appeal to the Supreme Court at the instance of the Crown was likely to result in a situation that was more favourable to the accused, bearing in mind the decision of the High Court. In any event the accused, if convicted, can appeal following his trial and raise this matter in the course of that appeal. Meanwhile it was likely that an appeal at this stage of this case would be postponed until the decision of the Supreme Court was known. It was already approaching one year since the allegation was made. For these reasons I did not consider that it would serve the interests of justice to grant leave to appeal and refused the motion.