APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] HCJAC 55 Appeal No: XC518/10 OPINION OF THE LORD JUSTICE CLERK in the Appeal by HUGH MULLEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie, QC; Capital Defence Edinburgh

Respondent: Ferguson, QC AD; Crown Agent

7 June 2011

Introduction

[1] On 18 May 2010 at the High Court in Dundee the appellant was convicted by a unanimous verdict of the following charge:

"on 13 March 2009 at Myrtle Park, Blairgowrie you HUGH SNEDDON MULLEN and RICHARD SNEDDON MULLEN did assault Daniel Campbell Beattie or Crowe ... and strike him repeatedly on his head and body with golf clubs or similar implements, to his severe injury, permanent disfigurement and you did attempt to murder him and you HUGH SNEDDON MULLEN did rob him of a ring"

The appeal is based on the decision of the Supreme Court in Cadder v HM Adv (2010 SLT 1125).

The evidence

[2] The complainer's evidence was that the appellant and his brother, the co-accused, assaulted him at the locus in the manner libelled. His ring was taken from him as he lay unconscious.

[3] A neighbour, Fiona Anderson, saw the incident. She identified the appellant as one of two men who repeatedly struck the victim with golf clubs or similar implements. Kenneth Kidd, another neighbour who saw the incident, identified a distinctive striped jumper as having been worn by the co-accused. Miss Anderson and Mr Kidd said that they saw the two assailants leave the scene by a footpath in the general direction of Jessie Street.

[4] The witness William Whytock was at the Jessie Street end of the footpath. He said that two men passed him carrying what he thought were sticks. A short time later, when a police car arrived, he saw the men go back in the direction from which they had come. The witness Samuel Adams was nearby in Harriet Row. He said that he saw a man, whom he identified as the appellant, running away from a police car. He then saw the appellant and the co-accused jumping over a wall and heading towards Emma Street. Police officers thereafter found the appellant and the co-accused together in Emma Street. The co-accused was wearing the distinctive top which the witness Kenneth Kidd had identified. Another officer found two golf clubs in bushes at or near the corner of Jessie Street and Harriet Row, close to the footpath from the park.

[5] The appellant was detained at around 11.50pm and taken to Divisional Police Headquarters in Perth. At 4.20am he was arrested. He was cautioned, made no reply and was returned to his cell.

[6] DC James Thomson and DS Graeme Binnie were present at the cell. At that point, according to DC Thomson, the appellant said "I only want to speak to one of you." DS Binnie left the cell. The appellant then said to DC Thomson:

"I was there to get Tommy Hill. I was outside shouting and Daniel came out. I only hit him on the legs. I saw his cheek all bashed in. I held him and said Daniel, Daniel. I don't want to drop my brother in it."

[7] DC Thomson and DS Binnie later interviewed the appellant under caution. They put to him that in the cell he had said to DC Thomson the words that I have quoted. The appellant denied that. He denied that he had been involved in the assault in any way.

[8] The complainer's ring was found in the toilet in the appellant's cell.

[9] At the trial the appellant's defence was that he had been present during the assault but had not taken part in it. He did not give evidence. In his speech to the jury the advocate depute outlined the evidence that I have summarised, other than the evidence of the admission to DC Thomson in the cell. He said that, taking all of that evidence together, the jury would be entitled to convict both accused, He then said:

"On top of that, you also have the evidence of DC Thomson of the admission by [the appellant] that he did strike the complainer. Even if you reject that piece of evidence there is enough, in my submission, in the rest of the evidence for guilt to be brought home to both accused."

He said no more about the alleged admission.

The appeal

[10] The ground of appeal is that the evidence of the admission allegedly made by the appellant in his cell was led by the Crown in breach of the appellant's article 6 rights. The admission, if made, was made when the appellant had not had access to legal advice. The evidence of it was, or should have been, inadmissible. There was a miscarriage of justice.

[11] Counsel for the appellant acknowledged that even without the evidence of the alleged admission to DC Thomson, there was sufficient evidence, amounting to a strong case, against the appellant. He accepted that unless the alleged admission fell within the ratio of Cadder, the appeal was bound to fail.

[12] The advocate depute conceded that we should deal with this appeal on the basis that the Cadder principle applied to the admission made by the appellant in the police cell; but he submitted that, even without the evidence of the admission, there had been a powerful case against the appellant. There was no real possibility that the jury would have arrived at a different verdict if they had not heard that evidence (cf Cadder v HM Adv, supra, at para 64). It was my impression that the concession made by the advocate depute was made in general terms rather than made only for the purposes of this appeal.

Conclusions

[13] The primary question is whether the Crown concession was properly made. In my opinion, it was not. The essence of the decision of the Grand Chamber of the Strasbourg court in Salduz v Turkey ( (2009) 49 EHRR 19), which Cadder applies, is that it is a breach of the accused's right to a fair trial for the prosecution to lead evidence of an incriminating admission made by him during questioning by the police when he has not had access to legal advice. The Grand Chamber put the matter in this way:

"... in order for the right to a fair trial to remain sufficiently 'practical and effective' article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction" (cf Salduz v Turkey, supra, at para 55).

In Cadder Lord Hope of Craighead, with whom the other justices agreed, said:

"The conclusion that I would draw as to the effect of Salduz is that the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning" (at para 48).

[14] In Cadder a clear distinction was drawn between the position of a detainee who is being interviewed by the police and that of a detainee before any interview takes place (ibid, para 37).

[15] In my opinion, the Cadder principle has no application where, as in this case, the suspect elects to speak to the police before he is interviewed. In such a case his statement is not elicited by interrogation.

[16] I would add that even if the submission for the appellant based on Cadder had been well founded, there was a compelling case against the appellant. In my view, there is no reason to think that, in the absence of the evidence of the admission, the jury would have returned a different verdict.

Disposal

[17] I propose to your Lordships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] HCJAC 55 Appeal No: XC518/10 OPINION OF LORD EMSLIE in the Appeal by HUGH MULLEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie, QC; Capital Defence Edinburgh

Respondent: Ferguson, QC AD; Crown Agent

7 June 2011

[18] For the reasons given by your Lordship in the chair, I agree that this appeal has no merit and must be refused.

[19] The "rule" envisaged in Salduz and applied in Cadder explicitly concerns the stage of police questioning or interrogation. Contrary to the appellant's submission it does not, as stated, extend to statements volunteered in other circumstances and in particular where nothing in the nature of interrogation has occurred. This conclusion seems to me to derive support from Lord Hope's careful explanation in Cadder, at paragraphs [33] and [34] of his judgment, to the effect that the Grand Chamber's concern in Salduz, and the rationale for the "rule", was "... to protect a detainee against duress or pressure of any kind that might lead him to incriminate himself", "... to protect the accused against abusive coercion on the part of the authorities", and "... to eliminate the risk of ill treatment or other forms of physical or psychological pressure as a means of coercing the detainee to incriminate himself." To my mind neither the "rule" nor its explained rationale can be said to have been engaged in the circumstances of this case.

[20] In any event, as your Lordship has indicated, the evidence against the appellant was so overwhelming that the alleged cell admission received little more than a passing mention in the Crown's speech to the jury at the end of the trial. Even if the alleged admission should have been excluded, therefore, there was no miscarriage of justice here: the appellant would still have had no realistic possibility of avoiding conviction.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] HCJAC 55 Appeal No: XC518/10 OPINION OF LORD BRODIE in the Appeal by HUGH MULLEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie, QC; Capital Defence Edinburgh

Respondent: Ferguson, QC AD; Crown Agent

7 June 2011

[21] For the reasons given by your Lordship in the chair I agree that this appeal should be refused.