APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2011] HCJAC 46 XC562/08 XC188/09 XC93/10 OPINION OF THE LORD JUSTICE CLERK In the Appeals by (1) RAYMOND JUDE; (2) MICHAEL HODGSON; and (3) JOSH BIRNIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first and third appellants: Shead, Mason; Drummond Miller, Edinburgh

For the second appellant: Shead, Mackenzie; Bruce & Co, Arbroath

For the Crown: Cherry QC, AD, Devaney; Crown Agent

11 May 2011

Introduction

[1] The questions that we have to decide in these appeals arise in consequence of the decision of the Supreme Court in Cadder v HM Adv (2010 SLT 1125). In each of these cases the appellant was interviewed by the police before he was charged and before he had had access to legal advice; and at the trial the Crown led evidence of certain statements made by him during the interview as part of its case. The grounds of appeal in each case include the contention that the appellant's rights under article 6 of the Convention were thereby infringed.

[2] Since each appeal was current at the date of the Supreme Court's decision, the ruling in Cadder might be thought to apply. However, the Crown submits that for three reasons that are common to all the three appeals, and for a fourth reason that applies only in the appeal of Raymond Jude, the Cadder principle does not arise. We have dealt with this as a preliminary matter.

The relevant legislation

Criminal Procedure (Scotland) Act 1995 (the 1995 Act)

Sections 14 and 15

[3] Sections 14 and 15 provide inter alia as follows:

"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 ...

(9) a person detained under subsection (1) above shall be under no obligation to answer any question other than to give his name and address, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.

15.-(1) Without prejudice to section 17 of this Act, a person who, not being a person in respect of whose custody or detention subsection (4) below applies -

(a) has been arrested and is in custody in a police station or other
premises, shall be entitled to have intimation of his custody and of the place where he is being held sent to a person reasonably named by him;

(b) is being detained under section 14 of this Act and has been taken to a police station or other premises or place, shall be entitled to have intimation of his detention and of the police station or other premises or place sent to a solicitor and to one other person reasonably named by him,

without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary ...

(2) A person shall be informed of his entitlement under subsection (1) above -

(a) on arrival at the police station or other premises; or

(b) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention.

(3) Where the person mentioned in paragraph (a) of subsection (1) above requests such intimation to be sent as is specified in that paragraph there shall be recorded the time when such request is -

(a) made;

(b) complied with ... "

Section 118(8)

[4] Section 118(8) provides as follows:

"(8) No conviction, sentence, judgment, order of court or other proceeding whatsoever in or for the purposes of solemn proceedings under this Act-

(a) shall be quashed for want of form; or

(b) where the accused had legal assistance in his defence, shall be suspended or set aside in respect of any objections to-

(i) the relevancy of the indictment, or the want of specification therein; or

(ii) the competency or admission or rejection of evidence at the trial in the inferior court,

unless such objections were timeously stated."

Scotland Act 1998

Section 57(2)

[5] Section 52(7) provides as follows:

"(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law."

Section 100

[6] Section 100 provides inter alia as follows:

"(1) This Act does not enable a person -
(a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
(b) to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights ...

(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

(3A) Subsection (3B) applies to any proceedings brought on or after 2 November 2009 by virtue of this Act against the Scottish Ministers or a member of the Scottish Executive in a court or tribunal on the ground that an act of the Scottish Ministers or a member of the Scottish Executive is incompatible with the Convention rights.

(3B) Proceedings to which this subsection applies must be brought before the end of -

(a) the period of one year beginning with the date on which the act complained of took place, or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question ... "

The road to Cadder

The 1995 Act, sections 14 and 15

[7] At all material times in these cases the detention of a suspect at a police station for questioning was governed by sections 14 and 15 of the 1995 Act (supra). In terms of section 15(1)(b) a suspect detained in this way had the right to have intimation of his detention given to a solicitor and to one other person reasonably named by him; but he had no right to have a solicitor present either before or during his interview. During the interview, the suspect was not obliged to answer any question other than a question as to his name and address (s 14(9)).

[8] In Paton v Ritchie (2000 JC 271) this court held that neither the common law nor the Convention required that in every case a detainee should have the opportunity to have his solicitor present; and that the question whether a fair trial could be achieved depended not simply on what happened during the preliminary investigation but on the whole proceedings. In Dickson v HMA (2001 JC 203), a court of five judges affirmed that view.

Convention jurisprudence before Cadder

[9] I need not examine in detail the jurisprudence of the Strasbourg court that led up to the decision in Salduz v Turkey (infra). It appears to be common ground that it established fairly clearly that where the prosecution relied on evidence of a confession made by an accused person while detained by the police, at a time when he had not had access to legal advice, there was a breach of his right to a fair trial under article 6.

Salduz v Turkey ((2008) 49 EHRR 421)

[10] On 27 November 2008 the Grand Chamber of the Strasbourg Court issued its judgment in this case. It held inter alia that article 6 was relevant to pre-trial proceedings where the fairness of the trial was likely to be seriously prejudiced by an initial failure to comply with the provisions of article 6; that early access to a lawyer was part of the procedural safeguards to which the court would have particular regard when examining whether a procedure had extinguished the very essence of the privilege against self-incrimination; that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police unless it was demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right; and that the rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. As the Supreme Court observed in Cadder, the judgment of the Grand Chamber did not depart from its previous case law but simply built upon it and developed it (Cadder, supra, at paras 43, 59, 67, 68).

[11] In the wake of Salduz numerous devolution minutes were intimated to the Crown on the ground that the leading of evidence by the Crown of a statement made by an accused person during a police interview when he had not had access to legal advice was a breach of the accused's right to a fair trial under article 6, and was therefore a breach by the Lord Advocate of section 57(2) of the Scotland Act 1998 (supra). I shall refer to these as Salduz minutes.

[12] Between November 2008 and October 2009 1350 Salduz minutes were lodged.

HM Adv v McLean (2010 SCCR 59)

[13] In October 2009 the effects of Salduz and its relevance to Scottish pre-trial procedure were considered in this court by a bench of seven judges in HM Adv v McLean (supra). In that case a crucial element in the Crown case was the record of the appellant's interview at a police station. It was agreed that the police interviewed the appellant before he had the opportunity to take legal advice. The appellant took the point that, in consequence of Salduz, the leading of evidence of his interview by the Crown was a breach of article 6 and of section 57(2) (supra).

[14] The court gave its unanimous decision on 22 October 2009 and published its written reasons on 15 December 2009. It refused the appeal. Having regard to the protections available to accused persons before and during trial, it saw no reason to depart from the approach that had been taken in Paton v Ritchie (supra) and Dickson v HMA (supra).

[15] Between October 2009 and 21 April 2010 a further 326 Salduz minutes were lodged. I infer that those advising accused persons and appellants thought it right to continue to take the point, notwithstanding the decision in McLean, in case the Supreme Court should ultimately take a different view. The advocate depute has pointed out that between January 2009 and April 2010 at least three commentators expressed the view that the Supreme Court might overturn McLean.

Cadder v HM Adv (supra)

[16] Cadder v HM Adv (supra) was an appeal on the Salduz point. Before the Supreme Court it was in effect an appeal against McLean. On 26 October 2010 the Supreme Court gave its decision. It overruled McLean.

The present appeals - the police interviews and the trials

[17] Since we are dealing here with certain concise preliminary questions raised by the Crown, I think that it is best that we should not stray too far into the facts or the pre-trial procedures in each case. We are simply being asked to rule on four legal points, leaving all other grounds of appeal entire. It is sufficient to say that in each case the appellant made certain statements of which the Crown led evidence at the trial and that in each case, the defence failed to object to the leading of that evidence at the time.

[18] The appellant Raymond Jude was tried on one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. He was convicted of one charge of indecent assault and of both charges of assault with intent to rape. Before he was charged, he was interviewed by the police under caution regarding an allegation of the attempted rape of his step-daughter. He made no admissions. Later when he was in detention in prison, he was taken to a police station to be further interviewed. He requested that intimation of his detention should be made to a solicitor whom he named. This interview related to new matters including indecent assaults on the same complainer, the sending of indecent text messages to her, the taking of indecent films of her and a separate allegation of attempted rape. At first he replied to questions with the words "No comment." Later, he answered questions in some detail but made no admission of guilt, save to say that he had once slapped the complainer on the bottom, when she was 21 years old, by way of reasonable chastisement. He maintained throughout that he had had no sexual involvement with the complainer and that she had behaved in a sexually inappropriate manner towards him. After sundry pre-trial procedure relating to section 275 of the 1995 Act, the Crown and the defence drew up a joint minute setting out their agreement as to the parts of the appellant's statements that were to be led in evidence. No evidence was led for the defence. The appellant relied on the edited statements to put his position before the jury.

[19] The appellant Michael Hodgson was charged with rape and convicted subject to minor deletions. When he was detained by the police, he replied to the caution to the effect inter alia that he had slept with a girl whom he described and who, from his description, could reasonably be identified as the complainer. After being cautioned at the start of his police interview, he said "because it's on tape I'm not really bothered about my solicitor being present." His statement at interview was to the effect that he had had sex with the complainer but that he had done so with her consent and encouragement.

[20] The appellant Josh Birnie was charged inter alia with abduction and assault with intent to rape and a contravention of the Communications Act 2003 by the sending of sexually explicit text messages to a female complainer. He pled guilty during the trial to the statutory offence and was found guilty of the first charge under certain deletions, including the averment of intent to rape. When the appellant was detained by the police, he declined to have intimation of his detention made to a solicitor. Later he volunteered to make a statement and declined the opportunity to have a solicitor present when he made it; but at that stage he had not had access to legal advice as to his rights at interview or otherwise as to his legal position.

The issues raised by the Crown

[21] The Crown contends (1) that section 118(8) of the 1995 Act is in each case an absolute bar to any challenge to evidence of the interview; (2) that at the time of the interview each appellant waived his right of access to a lawyer; (3) that by his failure to object at the trial, each appellant waived his right to take the point as a ground of appeal; and (4) that in the appeal of Raymond Jude, by reason of section 100 of the Scotland Act 1998, as amended, the Cadder point has been taken too late.

Conclusions

Section 118(8)

[22] The argument for the Crown is, in short, that the objection based on the Salduz principle was open to all three appellants but was not taken at the trial; and therefore, by reason of section 118(8), cannot be taken as a ground of appeal. The Crown accepts that section 14 of the 1995 Act did not entitle a suspect to have access to a solicitor at the time of each interview; but argues nevertheless that when Raymond Jude was tried, the Salduz principle had in substance been declared by the Strasbourg court in earlier decisions and therefore that the point could have been taken by the defence; that in the period after Salduz and before McLean, when Michael Hodgson was tried, the point was more obviously there to be taken; and that in the period after McLean but before Cadder, when Josh Birnie was tried, the point was even more obvious, the likelihood that the Supreme Court would overrule McLean having been extensively discussed among academics and practitioners.

[23] I need not go into the details of the literature on the subject that followed the McLean decision. It is enough to say that in articles by various savants, academic and professional, the decision in McLean was not regarded as being the last word on the subject.

[24] The Crown also submits that it has suffered prejudice by reason of the failure of the defence to take the point in any of these trials. It submits that if the appropriate objection had been taken, the Crown would have had the opportunity to consider whether to present its case in a different way.

[25] The submission of counsel for the appellants is that where the Lord Advocate or her depute leads evidence obtained in the circumstances discussed in Cadder, that act constitutes a fundamental breach of the Convention and therefore founds a ground of appeal, whether or not the evidence was objected to at the trial. This seems to imply, notwithstanding an indication to the contrary in Cadder (ibid, at para 96), that the right of access to legal advice cannot be waived. If the submission for the appellant on this point is well-founded, it has far-reaching implications that may arise on another day.

[26] Counsel for the appellants also submitted that, if need be, we should read down section 118 in a Convention-compliant sense, having regard to section 3 of the Human Rights Act 1998. It was not clear to me exactly how counsel wished us to read down section 118, standing its terms.

[27] For the present, I think that we need not consider either of these submissions because, in my opinion, the Crown objection is groundless. The decisive question is not as to the tenor of the various commentaries on the decisions in Salduz and McLean or the predictions that were made as to the likely view of the Supreme Court. The question is straightforward: what was the law when each of the appellants was tried?

[28] I agree with the contention of counsel for the appellants, adopting the language of Lord Bingham of Cornhill in Millar v Dickson (supra, at para [37]), that it is an "inescapable fact" that until the decision of the Supreme Court in Cadder, no successful challenge had been made to the use of evidence obtained at an interview under section 14 of the 1995 Act where that evidence was not otherwise tainted by unfairness.

[29] When Raymond Jude was tried, whatever the state of the developing jurisprudence of Strasbourg on the subject, the law regarding access by a detainee to legal advice was laid down in sections 14 and 15 of the 1995 Act. These provisions in effect denied the accused access to a lawyer until after his interview. This court had held that neither the common law nor the Convention required that a detainee should have his solicitor present at that stage (Paton v Ritchie, supra). That decision had been affirmed by a court of five judges in Dickson v HM Adv (supra). These sections and these decisions would therefore have presented a conclusive answer to any objection to the admission of the evidence of the appellant's interview. In the case of Michael Hodgson, the position would have been the same. When Josh Birnie was tried, the law had been laid down by a unanimous decision of seven judges to the effect that Salduz did not govern the question. An objection to the admission of evidence of his interview would therefore have been bound to fail.

[30] It follows, in my view, that the failure of the defence to take the Salduz point cannot entitle the Crown to found on section 118. On this view, the question of prejudice to the Crown does not arise.

Waiver by the accused at the interview

[31] The submission for the Crown is that the accused in each case waived his right of access to a lawyer. The extent of the right recognised by the Supreme Court was not defined in Cadder. It certainly extends to the detainee's having legal advice before the interview begins. Whether it extends to having a lawyer present throughout the interview, as counsel for the appellant suggests, is another matter; as is the question whether it extends to a statement made in answer to a question from a police officer at the point of detention itself; or in an informal conversation with a police officer before the interview begins. These are questions for another time. In the present case it is sufficient to say that none of the appellants had access of any kind to legal advice until after his interview was over. There was therefore a clear prima facie breach of the Cadder principle unless the relevant right was waived.

[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] In each case the police had the right to detain and interview the appellant. They had a duty to inform him of his rights under section 14. These did not include the right to consult a solicitor before being interviewed. His only right was to decline to answer questions at interview other than those relating to his name and address (1995 Act, s 15(9), supra). If the appellant in fact answered questions, he cannot in my opinion be held to have waived his right to legal advice when the Scottish courts had declined to recognise any such right and section 14 clearly excluded it.

[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).

Waiver by the defence at the trial

[35] The Crown submission on this point is that the failure to object to the evidence constituted a waiver of the right to take the point on appeal. The reasons that I have given in relation to section 118(8) apply also to this objection and for those reasons I reject it.

Section 100 of the Scotland Act 1998

[36] The Crown submits that the case of Raymond Jude is governed by section 100(3B) of the Scotland Act, as amended. It relies on obiter dicta of Lord Rodger of Earlsferry in Cadder on a point that was not mentioned by any of the counsel who appeared in that appeal (Cadder, supra, at para 106). This is what his Lordship said:

"The present proceedings are proceedings brought on the ground that it is incompatible with article 6(1) and (3) for the Lord Advocate to lead evidence of answers to questions elicited by the police under section 14 of the 1995 Act when the accused had no right to legal advice and had not had legal advice. The leading of such evidence is an "act" for the purposes of the section: subsections (3D) and (4). Any fresh proceedings which sought to raise the same point in other cases would be brought on the same ground. If those proceedings were brought on or after 2 November 2009, they would fall within section 100(3A) of the Scotland Act as amended. Subsection (3E) makes it clear that subsection (3A) applies to proceedings relating to an act done before 2 November 2009. It follows that, by reason of subsection (3B), to be competent, any such proceedings would need to have been commenced before the end of a year beginning with the date on which the Crown led the evidence, or within such longer period as the court considered equitable having regard to all the circumstances" (para 106).

[37] I cannot follow why Lord Rodger of Earlsferry should have taken this view. Section 100, as enacted, did not contain any time limit such as is to be found in the Human Rights Act 1998. In consequence of the decision of the House of Lords in Somerville v Scottish Ministers (2008 SC (HL) 45), it was amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009. That section applies to claims made against a member of the Scottish Executive. In my opinion it applies only to claims made in civil proceedings and then only when they are brought "by virtue of this Act" (sc the Scotland Act).

[38] This appeal is brought under the 1995 Act. In any event, it is not a claim by the appellant against a member of the Scottish Executive. It is part of a prosecution process brought by a member of the Scottish Executive against the appellant. In my opinion, section 100 of the Scotland Act has no bearing on this appeal.

[39] For these reasons I consider that this court appears to have misdirected itself in Ahmad v HM Adv (2011 HCJAC 16) when, in deciding whether to admit two Cadder grounds of appeal, it considered that section 100 applied.

Disposal

[40] I propose to your Lordships that we should repel the Crown's objections in all three appeals and continue the appeals for hearing on the existing grounds of appeal. Whether the appeals should remain conjoined is a matter that can be decided after a procedural hearing.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2011] HCJAC 46 XC562/08 XC188/09 XC93/10 OPINION OF LORD OSBORNE In the Appeals by (1) RAYMOND JUDE; (2) MICHAEL HODGSON; and (3) JOSH BIRNIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first and third appellants: Shead, Mason; Drummond Miller, Edinburgh

For the second appellant: Shead, Mackenzie; Bruce & Co, Arbroath

For the Crown: Cherry QC, AD, Devaney; Crown Agent

11 May 2011

[41] I agree with your Lordship in the Chair and have nothing further to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2011] HCJAC 46 XC562/08 XC188/09 XC93/10 OPINION OF LORD EASSIE In the Appeals by (1) RAYMOND JUDE; (2) MICHAEL HODGSON; and (3) JOSH BIRNIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first and third appellants: Shead, Mason; Drummond Miller, Edinburgh

For the second appellant: Shead, Mackenzie; Bruce & Co, Arbroath

For the Crown: Cherry QC, AD, Devaney; Crown Agent

11 May 2011

[42] I agree that, for the reasons given by your Lordship in the Chair, the four points raised by the Crown should be answered in the way in which your Lordship proposes.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2011] HCJAC 46 XC562/08 XC188/09 XC93/10 OPINION OF LORD CLARKE in the Appeals by (1) RAYMOND JUDE; (2) MICHAEL HODGSON; and (3) JOSH BIRNIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first and third appellants: Shead, Mason; Drummond Miller, Edinburgh

For the second appellant: Shead, Mackenzie; Bruce & Co, Arbroath

For the Crown: Cherry QC, AD, Devaney; Crown Agent

11 May 2011

[43] I agree with your Lordship's views and conclusions and have nothing further to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2011] HCJAC 46 XC562/08 XC188/09 XC93/10 OPINION OF LORD MACKAY OF DRUMADOON in the Appeals by (1) RAYMOND JUDE; (2) MICHAEL HODGSON; and (3) JOSH BIRNIE Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

For the first and third appellants: Shead, Mason; Drummond Miller, Edinburgh

For the second appellant: Shead, Mackenzie; Bruce & Co, Arbroath

For the Crown: Cherry QC, AD, Devaney; Crown Agent

11 May 2011

[44] I also agree with your Lordship in the Chair and have nothing further to add.