Appellant: Shead; Drummond Miller

Respondent: D. Bain, Q.C., A.D.; Crown Agent

20 January 2011

[1] The appellant was indicted in the Sheriff Court at Aberdeen on three charges. The first alleged that, on 17 March 2009 he indecently assaulted and abducted [ALA] then aged 14 years, all with intent to rape her. The second alleged that, on various occasions between May and July 2009, he breached the peace, the burden of the charge being that he had threatened [ALA] and another girl. The third was that, on various occasions in June 2009, he sent offensive or indecent and obscene electronic messages to a third girl, contrary to the Communications Act 2003, Section 127(1)(a).

[2] The trial commenced on 7 December 2009. The appellant was represented by counsel and solicitor. In the course of the trial the Crown accepted a plea of not guilty to charge 2 and the appellant pled guilty to charge 3. On charge 1, the jury returned a verdict of guilty under deletion of certain averments, including that of attempt to rape. The appellant was sentenced to 18 months' detention.

[3] The appellant sought leave to appeal against his conviction. Four grounds were formulated at that stage, the first three being in substance a single contention that, on the evidence, no reasonable jury, properly directed, could have returned a verdict of guilty on charge 1. The fourth ground related to another matter. Leave to appeal was refused in relation to that fourth ground but granted as to the rest.

[4] The appeal called for hearing on 16 November 2010 when the court observed that the only corroboration of the complainer's account on the first charge appeared to be the appellant's replies to questioning at interview following his detention under section 14 of the Criminal Procedure (Scotland) Act 1995. With the recent decision of the Supreme Court in Cadder v HM Advocate [2010] UKSC 43 (promulgated on 26 October 2010) in mind, it noted that there was no ground of appeal before the court founded on that authority. Having heard parties, it discharged the diet of hearing of the appeal and directed the appellant to lodge and intimate to the Crown, within a week, a proposed additional ground of appeal. The appeal was continued to consider a motion seeking leave to amend the note of appeal in terms of the proposed additional ground. The case has now come before us for such consideration.

[5] The application for leave to amend the grounds of appeal in the event contained more than one additional ground. It is in the following terms:

"Application is hereby made for leave to amend the grounds of appeal by insertion of the following additional grounds:-

'5 (a) The appellant was convicted on charge one on the strength of (i) the parole evidence of the complainer named in charge one and (ii) certain purported admissions made by the appellant at the conclusion of a police interview and in the course of a voluntary statement made to the police following his detention and interview. Absent the purported admissions made by the appellant, there was insufficient evidence to support a conviction on charge one. The appellant, who was seventeen years old at the time, did not have the opportunity to consult with a solicitor prior to being interviewed, or prior to making the voluntary statement. A solicitor was not present at the interview or when the voluntary statement was made. In seeking a conviction in those circumstances, the Lord Advocate was acting incompatibly with the appellant's Convention rights, including those under Article 6(3)(c) and 6(1) of the European Convention on Human Rights. Such an act was ultra vires of the Lord Advocate by reference to section 57(2) of the Scotland Act 1998;

5 (b) In any event, the reliance by the Crown upon the purported admissions of the appellant in the preceding circumstances deprived the appellant of a fair trial, to which he was entitled under Article 6(1) of the convention and at common law;

6 (a) The appellant was represented by counsel, with instructing solicitor, at trial. The representation and advice afforded to the appellant was defective in that trial counsel failed to take timeous objection to the admissibility of the purportedly incriminating replies made by the appellant at interview and in the course [of] the voluntary statement;

6 (b) Further, the representation and advice afforded to the appellant by counsel was defective in that trial counsel entered into a joint minute of agreement incorporating the purportedly incriminating replies made by the appellant at interview and in the course of the voluntary statement;

6 (c) For the reasons stated at grounds 6(a) and 6(b) above, the conduct of trial counsel deprived the appellant of a fair trial and accordingly there has been a miscarriage of justice."

[6] The Crown on various grounds opposed the motion for leave to amend. Mr Shead for the appellant emphasised that the proposed grounds of appeal on the basis of defective representation and advice would only arise if the court sustained the Crown's contention that, on the basis of waiver or the application of Section 118(8) of the Criminal Procedure (Scotland) Act 1995, it was not open to the appellant to maintain a "Cadder" contention.

[7] It is appropriate at this stage to advert to the relevant legal history. On 27 November 2008 a Grand Chamber of the European Court of Human Rights issued its decision in Salduz v Turkey (2009) 49 EHRR 19 in which it held that, in the circumstances before it, there had been a violation of Article 6(3)(c) in conjunction with Article 6(1) of the Convention in respect of the lack of legal assistance to the applicant while he was in police custody. In HM Advocate v McLean 2010 SCCR 59, the minuter relied on the Grand Chamber judgment in Salduz in support of a contention that, he having been interviewed during detention in the absence of having been afforded the opportunity of either legal advice upon being taken into police custody prior to the interview taking place or the presence of his solicitor during interview, the contents of the interview were not admissible in evidence. This court on 22 October 2009 rejected that contention holding that the right under Article 6(3)(c) was not an absolute right and that the right to a fair trial under Article 6(1) was otherwise secured under Scots law. Although not reported until early in 2010, the decision and reasoning of the court was available immediately at [2009] HCJAC 97. By the time of the trial in the present case it was well known in the profession. The decision in McLean was, with other Scottish decisions, overruled by the Supreme Court of the United Kingdom in Cadder v HM Advocate, judgment being given on 26 October 2010. Although press and other reports of the hearing in May suggested that the Supreme Court might be minded to overrule McLean, the decision of this court in McLean remained the authoritative ruling on the matter until it was in fact overruled.

[8] We turn now to the circumstances of the present case. The appellant was detained by the police on Friday 14 May 2009. He was then 18 years of age. He was interviewed under caution by police officers in the late morning of that day. He was asked whether he wished a solicitor to be present but declined such assistance. In the course of the interview, he admitted to having been with [ALA] at his home on the day of the alleged incident and, eventually, to having kissed her, though he claimed that she had asked him to do so. He denied that he had assaulted or abducted her. In the course of this interview, he was charged with abducting [ALA] and of assaulting her indecently. He questioned the first of these charges and denied the second. Shortly after this interview terminated the appellant, who had by this stage been arrested, was told that he would be kept in custody over the weekend. At this point he burst into tears and said "I poked her". He confirmed that he was speaking about [ALA] and was told to say nothing further. At the conclusion of that interview the appellant is recorded as having wished intimation of his arrest to be made to a named solicitor. The execution of that wish is recorded as having not been practicable. Thereafter officers unconnected with the inquiry (a detective inspector and a detective sergeant) then became involved. They confirmed with the appellant that he wished to volunteer a statement. They asked him whether for that purpose he wished to consult a solicitor or to have a solicitor present when he made the statement. Both he declined. He then gave a statement, which was noted and tape recorded. The noted statement was read back to him and he confirmed that it was true and given of his own free will. He then signed it. In the course of that statement he said that he wanted "to admit to poking [ALA] she asked me to do it". He clarified "poking" as putting his fingers into her vagina.

[9] Transcripts of the interview while in detention and the volunteered statement were productions at the trial, as was the form on which was noted contemporaneously what he had stated, as well as the preliminaries to and supplementary questions and answers relevant to that statement. In the course of the trial the procurator fiscal depute and counsel for the appellant entered into a Joint Minute in which it was agreed that the transcripts produced should be admitted in evidence as being transcripts of what was said by the accused during the interview while under detention and the giving of the voluntary statement. Notwithstanding such agreement, evidence was subsequently led by the procurator fiscal depute from the detective inspector and the detective sergeant of what had been said to them. No objection was taken to the leading of such evidence. There was no cross-examination of these witnesses. While apart from the utterances, there was some other evidence corroborative in at least some respects of the complainer, the utterances were plainly important evidence for the Crown.

[10] In addressing us Mr Shead was somewhat ambivalent as to whether it was necessary, in order to have the proposed additional grounds of appeal considered by the court, to move an amendment of the (original) note of appeal; additional grounds could, he suggested, be founded on under section 110(4) of the 1995 Act without amendment of the note of appeal. But Practice Note No.2 of 2010 at paragraph 7 makes it plain that the proper course, procedurally, when it is sought to introduce new grounds of appeal subsequent to leave to appeal having been granted, is to seek leave to amend the note of appeal. We proceed on the basis that this application, as is in any event made plain on the form by which it is presented, is such an application to amend.

[11] Mr Shead submitted that to succeed in such an application, an appellant need demonstrate only two things - (1) that the proposed ground or grounds were arguable and (2) that "cause" was shown for bringing the application at this stage. In relation to (1), he drew attention to the similar wording in sections 107(8) and 110(4). Having regard to the decision of the Supreme Court of the United Kingdom in Cadder, it was plainly arguable that the appellant's utterances during detention, immediately thereafter and when giving the "voluntary" statement (all which should be looked at together) were inadmissible against him as having been emitted without his having had the benefit of legal advice. Reliance was put, in particular, on the observation by Lord Brown at paragraph 108 in Cadder. Although the appellant had had the benefit of legal advice at the trial, the attitude of his counsel and solicitor at that time must necessarily have been influenced by the decision of this court in McLean. It was only when that decision was overruled in October 2010 that it had become plain that the utterances in question were inadmissible. The point had been raised by the court itself at the first hearing of the appeal on 16 November 2010. As to waiver, there could be no question of a youth without the benefit of legal advice waiving his right not to have the benefit of such advice. While waiver might operate in some circumstances (possibly where the suspect was himself legally qualified) it could not have operated here. Reference was made to Pishchalnikov v Russia (Application 7025/04, delivered on 24 December 2009) at paragraphs 76-8. As to waiver at the stage of the trial, the relevant issue at that point was the settled state of the law as then understood by the appellant's legal advisers.

[12] The Advocate depute submitted that, at the time of the trial, legal representatives could be expected to be aware of the Grand Chamber judgment in Salduz, that a very substantial number of devolution minutes had been presented on the basis of that case and that, notwithstanding the decision of this court in McLean, the Supreme Court of the United Kingdom might take a different view (as in the event it had done). The relevant legal landscape had to be seen in that context. The right to have access to a lawyer could be waived (Cadder v HM Advocate, per Lord Rodger at paragraph 96). Reference was also made to Sharkanov v Russia (Application 75330/01, 10 September 2010) at paragraph 106; Yoldas v Turkey (Application 27503/04, 23 February 2010), at paragraph 51; Miller v Dickson 2001 SCCR 741, per Lord Bingham of Cornhill at paragraphs 31-8 and Lord Hope of Craighead at paragraphs 52-60; and Lochridge v Miller 2002 SCCR 628, at paragraphs [5] and [7]. The appellant at the time of his detention dispensed with intimation of that detention being sent to his solicitor. He had waived any right to have legal advice prior to being interviewed. He had, in any event waived his right to have a solicitor present when he made his voluntary statement. It was not arguable that he had not waived his right. At the time of the trial his legal representatives had, on his behalf, waived his right to have his utterances against interest excluded from consideration by the jury. In any event, the point had not been timeously taken on appeal. No good cause had been shown for allowing it to be taken now. Reference was made to Donnell v HM Advocate 2005 SCCR 728, Beggs v HM Advocate 2006 SCCR 25, especially at paragraph 5, Gordon v HM Advocate [2009] HCJAC 52 and Lowrie, McDonald and Ahmed v HM Advocate [2009] HCJAC 71. Furthermore, no objection having been taken by counsel at the trial to the admission of the evidence now challenged, the appellant was barred by section 118(8) of the 1995 Act from taking it. Section 118(8) was a time limit. Enforceable time limits were consistent with the Convention. Reference was made to Bricmont v Belgium (1986) 48 DR 106, Hennings v Germany (1993) 16 EHRR 83 and Robertson v Frame 2006 SCCR 151. Reference was also made to McPhee v HM Advocate 2009 JC 39, McFadden v HM Advocate [2009] HCJAC 78, Dunn v HM Advocate 2003 SLT 269 and Mulligan v HM Advocate 2008 JC 379. The Advocate depute accepted that the waiver and the section 118 arguments could not avail her at this stage unless it was clear beyond argument that the Crown was bound to succeed on one or other of them.

[13] In reply on the section 118 point, Mr Shead submitted that that provision did not operate where the point in issue gave rise to a fundamental nullity (Robertson v Aitchison 1981 SCCR 149, at pages 151-2). Here there was an issue of that character in respect that there had been a contravention by the prosecutor of the Scotland Act 1998. In any event, in this context Section 118(8) had to be read and given effect, in so far as possible, in a way which was compatible with Convention rights (Human Rights Act 1998, section 3(1)). Section 118(8) could be so read by restricting the objections which had to be timeously stated to those which were, at the time of the trial, reasonably open having regard to the then understood state of the law. Reference was also made to Cameron v Waugh 1937 JC 5, per Lord Justice General Normand at page 9. In the time available at the hearing the Advocate depute did not have an opportunity of responding to the submission made by Mr Shead on the interpretation of section 118(8).

[14] The issue before the court at this stage is whether leave should be granted to amend the note of appeal in the manner proposed. Leave under section 110(4) may be granted only on cause shown. It is implicit in the requirement to show cause that the proposed grounds are arguable (Beggs v HM Advocate, at paragraph [5], discussing the parallel position in section 107(8)). Accordingly, in relation to the first of the proposed additional grounds of appeal, the appellant must demonstrate that it is arguable that he has suffered a miscarriage of justice by reason of the fact that the Crown led in evidence, and relied on, utterances he had made extrajudicially without the benefit of legal advice. In Cadder Lord Brown encapsulated at paragraph 108 his understanding of the Strasbourg jurisprudence on this point. He said:

"It is imperative ... that before being questioned [the suspect] has the opportunity to consult a solicitor so that he may be advised not merely of his right to silence (the police will have already informed him of that) 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. He must in short have the opportunity to be advised by a solicitor not to make incriminating statements despite whatever inclination he might otherwise have to do so."

The appellant had no such advice at any stage while being held at the police station on 14 May 2009. The Crown's response to this ground is principally based on the proposition that the appellant waived his right to have the benefit of that right (and subsequently at his trial, through his legal representatives, waived his right to have evidence of his utterances excluded) and that, in any event, no objection to the evidence having been taken at trial, the conviction cannot now be set aside on that ground (section 118(8)). The Advocate depute accepted that these responses would not preclude the relative ground of appeal being arguable unless she was able to demonstrate conclusively at this stage that the ground was foreclosed by the operation of waiver or of section 118(8).

[15] We are not persuaded that such conclusive demonstration of foreclosure has been given. As the issues will require to re-argued at the hearing of the appeal, it is undesirable to express provisional views on the arguments at this stage. We note, however, that the Crown has not as yet had an opportunity to respond to the appellant's suggested reading down of section 118(8). We are, however, satisfied that the proposed ground relating to the admission of the utterances is arguable. We are also of the view that the proposed ground based on defective representation should also be available for consideration by the court. We have not formed any view either on the interpretation and application of section 118 or on the alleged waiver by the appellant's representatives at trial. Comment by such representatives may assist the court's consideration of these issues.

[16] The issues raised are of importance not only to the appellant but for the disposal of other current appeals in like circumstances. The court itself raised the Cadder point at the first hearing of the appeal. Although a significant period of time had elapsed since the trial before the point was taken by the appellant, the decision of the Supreme Court of the United Kingdom had only recently been pronounced. In these circumstances, we are satisfied that cause has been shown for allowing the note of appeal to be amended by adding the proposed grounds (5 and 6) and we shall grant leave accordingly. We shall instruct the Clerk of Court to seek comment on ground 6 from counsel and solicitor who acted for the appellant at the trial. Once such comment has been received, the case will be put out for an early diet before the court as presently constituted.