Appellant: I M Patterson (solicitor advocate); Paterson Bell

Respondent: Brodie, QC, AD; the Crown Agent

30 October 2012

The trial

[1] On 9 February 2012, at Dundee Sheriff Court, the appellant was found guilty of public indecency in Lochee Road on 1 January 2011, by masturbating.

[2] The evidence came from two police officers. The first had been on plain clothes duty. He testified that he had been driving on Lochee Road at about 9.00am, when he saw the appellant outside a Chinese Restaurant with his trousers pulled down to his thighs. He was facing the wall and masturbating. He had two magazines in front of him, resting on a window ledge. The second officer, who was in uniform, had received a call from the first. He had arrived at the scene some two minutes later and found the appellant in the street, carrying two pornographic magazines. He stopped the appellant, cautioned him at common law on his right to silence and told him that there had been a report about him masturbating in public. The appellant initially denied masturbating, but the following exchange then occurred:

"Q You were seen by a plain-clothed police office masturbating. I don't believe you.

A Sorry, I'm drunk.

Q So you were masturbating?

A Yes I was".

The sheriff accepted the evidence of this second policeman that what he had been attempting to do, when asking questions of the appellant, was trying to ascertain whether he was the same person as had been described by his colleague in the message to him.

[3] Objection had been timeously taken by the appellant to the admissibility of his response to the police questioning, on the basis that he should have been detained under section 14 of the Criminal Procedure (Scotland) Act 1995 and, thus, given the right to consult a lawyer before being asked anything. It was argued that the question and answer session should have been excluded and that, without it, there was insufficient evidence for a conviction. The sheriff repelled the objection and ultimately convicted the appellant, as libelled.

Submissions
[4] It was submitted, first, as it had before the sheriff, that the appellant ought to have been detained under section 14, because he had become a suspect by the time of the second officer's approach to him in the street. In that situation, he ought to have been given access to legal advice. Secondly, under reference to HM Advocate v DL 2012 SCCR 347, in applying the overarching test of fairness, the question and answer session ought, in any event, to have been excluded. First, suspicion had attached to the appellant; secondly, an accusation had been made by the police that he had been masturbating; and thirdly, the appellant was effectively under, what was described as, the coercive power of the state, meaning that he was de facto in police custody.

[5] The advocate depute replied that the automatic right to legal advice, as described in Cadder v HM Advocate 2011 SC (UKSC) 13, did not apply as the appellant had not been in a coercive situation, as that was described in Ambrose v Harris 2012 SC (UKSC) 53. The questioning had occurred in the street. The appellant had been properly cautioned before being asked any questions. He was not in custody. He had not been misled into answering questions. Thus no issue of the right to a solicitor arose. In relation to the overarching question of fairness, following Lord Reed, delivering the Opinion of the Court, in Ambrose v Harris 2012 SCCR 465 (at paras [6] and [7]) in the absence of some form of cross-examination, or other intimidatory or oppressive conduct, it could not be said that any unfairness had arisen.

Decision
[6] In Ambrose v Harris 2012 SC (UKSC) 53, it was made clear by Lord Hope (para [62]) that, in considering whether a person's Article 6(1) rights had been breached, it was important to identify the moment when that suspect had become "charged" in European Convention terms. A person is so charged when his situation is "substantially affected", by police action; that is to say when police suspicion is being seriously investigated and the prosecution case is in the process of being compiled. That point is undoubtedly reached once a person has been arrested, or detained, and is in police custody. However, if the person is not in custody, in the sense of being in a sufficiently "coercive" state, there is no requirement under Article 6 that he obtain access to a lawyer. This was also made clear by Lord Hope (para [64]), under reference to Zaichenko v Russia 2010 ECHR 185. It was stressed also by Lord Browne (at para [85]) in stating that it was one thing to require the police to caution a suspect before questioning him but quite another to require that he be provided with legal assistance as a precondition of the admissibility of any answer. Following this dicta, the court does not consider that there was any requirement to provide the appellant with access to a lawyer when approaching him in the street with a view to ascertaining whether they had identified the correct person.

[7] In relation to the overarching question of fairness, there is no obligation on the police to arrest or detain persons suspected by them of committing a crime, especially a relatively minor one. Quite the contrary, the presumption is in favour of liberty. The court rejects, therefore, the submission of the appellant that the appellant ought to have been detained. The court endorses the views expressed by Lord Reed, delivering the Opinion of the Court, in Ambrose v Harris 2012 SCCR 465 (at para [6]) following Lord Advocate's Reference (No.1 of 1983) 1984 JC 52, LJG (Emslie) at 57-58). The appellant was an adult and it is not suggested that he was, in any way, vulnerable. He was at no point, before being asked questions or indeed during that process, in any form of custody ("de facto" or otherwise). He had been appropriately cautioned before being asked any question. In these circumstances, there can be no issue of intimidating or oppressive conduct of the type required before evidence would be excluded on the grounds of unfairness. For these reasons, the court will answer the questions in the Stated Case in the affirmative and refuse the appeal.

DL