APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lady Smith Lord Wheatley	[2012] HCJAC 166 Appeal No: XJ807/12   OPINION OF THE COURT   delivered by LADY PATON   in   CROWN APPEAL BY STATED CASE   by   PROCURATOR FISCAL, FORFAR   Appellant;   against   ANSTRUTHER PETER SMITH   Respondent:   _______

 

Appellant: Prentice QC sol adv, advocate depute; Crown Agent

Respondent: McCall; Capital Defence

 

21 December 2012

Introduction
[1] In 2011, the respondent (then aged 30) was employed as a beat-keeper on the Airlie Estate. The estate was owned by Lord Airlie, and the shooting tenant was Mr Anwer. The respondent's immediate superior was the head game-keeper, Michael Nisbet.

[2] On 7 March 2011, an SSPCA inspector (accompanied by a police officer) found three buzzards flying about in a crow cage trap on the respondent's beat. Following upon their inquiries, which included a twenty-minute interview with the respondent, the respondent was served with a summary complaint libelling four charges, ultimately amended to read as follows:

"(001) on 07 March 2011 at Wellbank Wood, Airlie Estate, Cortachy, by Kirriemuir, Angus you Anstruther Peter Smith being a person responsible for an animal, namely a Buzzard (Buteo buteo), in terms of the aftermentioned Act did fail to take such steps as were reasonable in the circumstances to ensure that the needs of the animal were met to the extent required by good practice in that you did fail to ensure its welfare and did fail to provide it with a suitable living environment;

Contrary to the Animal Health and Welfare (Scotland) Act 2006, Section 24.

 

(002) On 07 March 2011 at Wellbank Wood ... you, Anstruther Peter Smith, did intentionally or recklessly take a wild bird, namely, three Buzzards (Buteo buteo) within a cage trap;

Contrary to the Wildlife and Countryside Act 1981 Section 1(1)(a);

 

(003) On 07 March 2011, at Wellbank Wood ... you, Anstruther Peter Smith, did have in your possession and control a wild bird, namely, three Buzzards (Buteo buteo) within a cage trap;

Contrary to the Wildlife and Countryside Act 1981 Section 1(2)(a);

 

(004) On 07 March 2011 at Wellbank Wood ... you, Anstruther Peter Smith, did for the purposes of taking a wild bird use a cage trap, otherwise than in accordance with the terms of a licence granted by the appropriate authority in that you: (i) had failed to read the licence and understand the conditions and (ii) did use a cage trap that did not carry a tag or sign as required;

Contrary to the Wildlife and Countryside Act 1981 Section 5(1)(b)."

 

At a diet on 22 December 2011, the respondent's plea of not guilty to charge 1 was accepted. He went to trial on charges 2, 3, and 4.

[3] At a trial within a trial at Forfar Sheriff Court on 29 June 2012, the respondent's defence counsel objected to the admissibility of the evidence of the interview on the basis that the interview was unfair at common law, as the respondent had not been told that he was suspected of any offence and that he might face criminal charges. The sheriff sustained the objection and ruled the evidence of the interview inadmissible. The procurator fiscal led no further evidence, and the respondent was acquitted. The Crown now appeal by way of stated case.

 

The circumstances of the interview
[4] The sheriff made the following findings-in-fact in the trial within a trial:

"1. On 7 March 2011, following information passed to the SSPCA, Inspector Alistair McGregor of the Scottish Society for the Prevention of Cruelty to Animals and Police Constable Colin Proudfoot, the Wildlife Officer for Tayside Police, went to Wellbank Wood, Airlie Estate, Cortachy, by Kirriemuir, Angus.

 

2. Neither Inspector McGregor nor PC Proudfoot was in uniform, and they had travelled to the locus together in an unmarked motor car.

 

3. Having parked their car, they proceeded on foot for some 500 yards. At the periphery of Wellbank Wood, they came upon a substantial crow cage trap, which contained 3 live buzzards. On the floor of the cage were 3 dead baited rabbits and a small bowl of water.

 

4. Having photographed the crow cage trap, the buzzards and the surrounding area, 2 of the buzzards were immediately released, and the remaining buzzard was taken for treatment at an appropriate SSPCA centre, where it was later released, (after 2 or 3 days).

 

5. Neither an identification tag nor an information tag with contact numbers were attached to the crow cage trap.

 

6. Because of the location at which the said crow cage trap was found, the 2 officers proceeded to the estate office of Airlie Estate, where they spoke with Mr Michael Nisbet, the head keeper. They apprised him of what they had found, and that they were looking to speak to the person responsible for the trap. He then made a telephone call in private, following which Anstruther Peter Smith came to the estate office.

 

7. In the car park, Inspector McGregor had told Mr Smith that they had found a crow cage trap with 3 buzzards in it and the whereabouts of the cage. He said to Mr Smith that they required to speak to him about its use. PC Proudfoot also introduced himself as a Wildlife Officer of Tayside Police.

 

8. Having spoken briefly with Mr Smith in the car park at the Airlie Estate Office, Mr Smith suggested that the officers should speak with him in the privacy of his own home, to which suggestion they readily agreed. It was a short five minutes' motor drive from the estate office to Muirskeith, Cortachy, Angus, where Mr Smith lived.

 

9. On arrival at Muirskeith, the 2 officers were invited into the kitchen area of the house. There, Inspector McGregor told Mr Smith of the crow cage trap and the 3 buzzards that he had found therein. He advised Mr Smith that he was an SSPCA Inspector. Mr Smith was cautioned in the following terms:- 'I am going to ask you some questions. You do not need to say anything in answer. Anything you do say will be taken down and may be used in evidence.' The witness had no concerns that Mr Smith ought to have understood the caution.

 

10. Mr Smith was then told that he was entitled to seek legal advice or representation before the interview commenced. Mr Smith declined the opportunity to seek legal advice. Again, Inspector McGregor had no concerns that Mr Smith ought to have understood what had been said to him.

 

11. Mr Smith was not advised that he could, if he considered it necessary to do so in the course of the interview, seek a break in the questioning for the purpose of making contact with his legal advisers.

 

12. The interview was in the following terms:-

 

Q. What is your name?

A. Anstruther Peter Smith.

Q. Your address.

A. Muirskeith House, Cortachy DD8 4QF

Q. Date of birth

A. 28^th February 1981, at Edinburgh

Q. You are about to be asked some questions. You are not obliged to answer these questions but, if you do, what you say will be noted down and may be used against you. Do you understand?

A. Aye

Q. Do you wish to receive legal advice by a phone call or other method?

A. No

Q. Are you the beat keeper on Airlie Estate?

A. Yes

Q. Do you do vermin control?

A. Yes

Q. What sort?

A. Hoodies, stoats, weasels, ferrets, rats, foxes, feral cats

Q. What sort of control do you use for the hoodies

A. Larsen traps, shooting and multi cages.

Q. Where are your multi cages?

A. I have 5 on my beat.

Q. Do you operate the one in the wood at Wellbank?

A. I do

Q. Have you heard of the open General Licence?

A. I have

Q. Have you read it?

A. No

Q. The trap at Wellbank contains 3 buzzards. Can you tell me about them

A. Not really. I had released an owl earlier in the year from the same cage

Q. The trap had no tag on it. Can you tell me why it didn't.

A. I didn't know it needed one.

Q. It had no shelter, Why was this?

A. It's just a new pen, and it's not made with wood half in it. It's been open for about 5 months. I baited it with rabbits about a fortnight ago to try and catch a crow as a call bird.

Q. How long have you been a game-keeper?

A. 13 years.

Q. How long have you been a game-keeper on Airlie estate?

A. 5 years

Q. Who is your employer?

A. Mr Anwer now is the Shooting Tenant.

Q. Who owns Airlie Estate?

A. Lord Airlie

Q. Who was in overall control of the cage traps?

A. Me, on my beat.

 

13. At no time prior to the interview commencing was Mr. Smith informed that he was a suspect. It was never disclosed to him that the cage trap found did not have tags or contact details on it. Although never formally apprised that he might be charged with a criminal offence arising out of this investigation, Mr. Smith was, in reality, very much a suspect in the eyes of both Inspector McGregor and PC Proudfoot.

 

14. Mr Smith's waiving his right to have legal advice prior to the interview commencing was not a decision that was informed, voluntary and unequivocal."

 

The tag and sign referred to were (i) a tag which should identify the number of the local police station or wildlife officer for that area, and (ii) a unique sign which should identify the owner.

 

The sheriff's ruling
[5] Having heard evidence and submissions, the sheriff gave the following ruling noted at paragraphs [65] to [67] of the stated case:

"[65] It was my judgment that, at the moment that Mr Smith [the respondent] was about to be interviewed by Inspector McGregor and when the caution was first given, Mr Smith was, in the eyes of the SSPCA inspector and the accompanying police officer, very much a suspect. It is to me of some moment that, in the course of the caution, there was no reference whatsoever to the matters about which he was to be questioned. Indeed Mr Smith was not apprised - even in general terms - of the matters about which clarification was being sought in the course of the questioning. Mr Smith was only informed that he was to be interviewed under caution.

 

[66] Furthermore, Mr Smith was not advised that he could revisit his decision [concerning access to legal assistance] during the course of the interview. I consider that the extent to which he realised that he was able to seek telephone contact was far from clear. Also, it seems to me that the interviewing personnel (Inspector McGregor and PC Proudfoot) were well aware that Mr Smith was their prime suspect, he having been the person whom Mr Nisbet telephoned to attend forthwith at the estate office. It is also my judgment that the interviewing officers were more than a little relieved that Mr Smith had decided against availing himself of the opportunity to seek legal advice because 'it would have taken hours for a lawyer to get here'. The end result is that any waiver by Mr Smith of immediate access to legal advice either before or during the interview could not be objectively described as 'informed, voluntary and unequivocal'.

 

[67] In these circumstances, I held that the evidence of the interview was inadmissible."

 

The questions for the appeal court
[6] On page 24 of the stated case, the sheriff posed questions for the appeal court as follows:

"(1) On the evidence led, was I entitled to make finding in fact number 13?

 

(2) On the evidence led, was I entitled to make finding in fact number 14?

 

(3) On the facts established in the trial within a trial, was I entitled to hold that the evidence of the interview of the accused by the SSPCA Inspector was unfair and accordingly inadmissible?"

 

Submissions for the Crown
[7] At the outset, the advocate depute stated that if the conviction were to be set aside, the Crown would seek authority to bring a new prosecution (cf Miller v Jamieson 2007 SLT 1180). It was accepted that the respondent had been a suspect at the relevant time. That had been dealt with by the administration of a caution. But the Crown's contention was that the respondent had no "right" to a solicitor. The circumstances were that the respondent went voluntarily to his own home. He was not detained. He had not been taken to a police station. He was not in an oppressive or intimidating environment. He was not in de facto custody. His freedom of action had not been curtailed. He understood the terms of the caution. It had not therefore been necessary for the inspector to raise the question of legal representation. He had simply thought it fair to do so.

[8] The respondent was told that a police officer was present. He was told that they were making inquiries into the cage. He knew that he was responsible for the cage. He had been cautioned. In all the circumstances he was put on notice that an inquiry into the cage was taking place, and that the inquiry focused on him. In those circumstances he was asked if he wished to have legal advice. Nothing unfair had occurred. Reference was made to the observations of Lord Hope in paragraphs [55], [57], [64], [65] and [68] of Ambrose v Harris 2011 SLT 1005, 2012 SCCR 465, and to the decision in Procurator Fiscal, Alloa v Hutton and Martin [2011] HCJAC 25 November 2011.

[9] Even if an offer of legal advice had not been made, the evidence was not necessarily inadmissible. The test was one of fairness. The present case should not be confused with a situation where someone was in police custody. In Ambrose, the suspect was not informed of the nature of the offence before being cautioned, nor was he given access to a solicitor. Nevertheless it was held that his self-incriminating answers were admissible. In the present case, there had been no bullying, coercion, oppression, or unfairness. The crucial question was whether what had happened was unfair. The sheriff seemed to have taken the view that because the respondent was in fact offered legal advice, that offer transformed the circumstances into a "section 15A" situation in which the respondent would have a "right to a solicitor". The sheriff had conflated the offer of legal advice with a requirement under section 15A. But this was not a custody case. Applying the ratio in Ambrose and Miln v Cullen 1967 JC 21, what took place was fair. The respondent had no legal right to have either an offer of legal assistance, or the legal assistance itself. The fact that this opportunity for legal advice had been made available to him was simply a factor to be weighed up when assessing fairness.

[10] The questions in the stated case should be answered as follows: Question 1 in the affirmative; Question 2 in the negative; and Question 3 in the negative. The Crown appeal should be allowed.

 

Submissions for the respondent
[11] Counsel for the respondent invited the court to answer all three questions in the affirmative. The Crown appeal should be refused. Any motion for a new prosecution would be opposed.

[12] A devolution minute had been lodged relating to the question whether the respondent had a right to legal assistance in terms of article 6(3)(c) of the European Convention on Human Rights. However that minute had not been moved in the trial within a trial: so the sheriff did not have to determine any human rights question. In such circumstances, the test was one of common law fairness. That test had been properly identified and applied by the sheriff, as was evident in paragraphs [9], [59] and [60] of the stated case. That being so, the appeal court could only interfere if no reasonable sheriff could have come to the view the sheriff had come to (McClory v MacInnes 1992 SLT 501). For a suspect to know whether or not to waive his right to silence (ie the right not to incriminate himself) it was important that he knew both what was suspected and that he was a suspect (Brown v Scott 2000 JC 328). In the present case, the respondent had no idea - even in a general sense - that a criminal charge might be brought against him, and what it might be. On that basis alone the sheriff was entitled to reach the view he did. The licensing and tagging of a cage was understood to be a matter for the estate-owner or the tenant. The respondent was a first offender, who had never been in any trouble before. The caution told him that he need not answer questions, and what would happen if he did: but that was all. It was only after the interview, when the inspector said that he was going to make a report to the procurator fiscal, that it became apparent that he might be facing a criminal charge. Until then, there had been talk about three buzzards in a cage, and no suggestion that the respondent was suspected of a criminal offence.

[13] As for the Crown's submission relating to paragraph [65] of Ambrose, it was submitted that the respondent fell into the second category. Once the head keeper had identified the respondent, the latter was the prime suspect, and the questions asked during the interview were clearly ones which might elicit an incriminating response.

[14] Counsel therefore submitted that the sheriff's findings that the respondent was a suspect before questioning, and suspected for particular criminal offences to do with the cage, together with his findings that nothing was said to the respondent to tell him (i) that he was the suspect and (ii) the nature of the suspected offence, entitled the sheriff to come to the view that the interview was unfair and that the evidence of the interview should not be admitted.

[15] But there was a second basis for the sheriff's conclusion. Under reference to paragraph [66] of the stated case, counsel submitted that the sheriff was entitled to concur with the inspector's view that fairness demanded that the respondent be offered access to legal advice. The inference which could be drawn from paragraph [66] (with its reference to the officers being relieved, and the reasons for their relief) was that if the respondent had indeed requested a lawyer, the officers would have acceded to that request before interviewing him - and that would have resulted in some delay. That inference was a weighty factor, relevant to the overall assessment of fairness, and to the decision whether the circumstances in which a lawyer was declined contributed to rendering the interview unfair. If the respondent's failure to accept the offer of access to a lawyer proceeded on the basis that he had not been fully informed of the offence suspected and the fact that he was the prime suspect, that was a relevant matter when assessing fairness.

[16] The advocate depute had suggested that the sheriff was equiparating the circumstances to those in which section 15A was applicable. That was not the case. The sheriff had regard to the fact that the respondent was not told that he could change his decision not to seek access a lawyer. The sheriff was right to do so, for whilst the initial questions in the interview were fairly uncontroversial, as the interview progressed to questions about reading the licence, the lack of a tag, and who was in control, it might dawn on the respondent that he might incriminate himself. So even although the respondent might realise in the course of the interview that the officers were investigating a criminal offence, and that he, the respondent, was suspected of it, he had not been told that he could change his mind about legal representation during the interview. The sheriff was therefore correct to take that factor into account when assessing fairness: cf McGowan v B 2012 SC (UKSC) 182, paragraphs 7, 11, 12, and 17. On the basis of the findings-in-fact (which were not challenged) the sheriff was entitled to take into account the fact that the respondent did not have full information when he declined the offer of legal assistance. Thus it was of some significance, when assessing fairness, that the respondent was not told that he could change his mind when he realised that he might be running into trouble.

[17] In conclusion, the sheriff correctly looked at the whole circumstances, and concluded that the interview was unfair. His findings-in-fact were not challenged. He referred to appropriate authorities, and applied those authorities correctly. It could not be said that a reasonable sheriff could not have reached the conclusion reached by the sheriff here. The appeal should be refused and the questions answered in the affirmative.

 

Discussion
[18] In our opinion, it cannot be said that no reasonable sheriff, having heard the evidence and having properly directed himself in law, could have reached the conclusion reached by the sheriff in this case.

[19] The evidence which the sheriff was entitled to take into account included the following:

·                The SSPCA inspector and the accompanying police officer were in plain clothes.

·                They were in an unmarked car.

·                They visited the locus, and noted various matters (for example, the three trapped buzzards and the lack of tag on the cage).

·                They called at the estate office and made inquiries, which resulted in the respondent being summoned.

·                They accepted the respondent's invitation to go to his house.

·                They explained that they wanted to ask about the cage and "its use".

·                The inspector cautioned him, using a common-law-type caution "I am going to ask you some questions. You do not need to say anything in answer. Anything you do say will be taken down and may be used in evidence." (Finding-in-fact 9).

·                The inspector asked him if he would like legal assistance: this offer was declined.

·                The respondent was not advised that he could change his mind at any time about legal representation.

·                According to the inspector, the respondent "would have had no idea that he was being interviewed about a possible case against him." (paragraph [43] of the stated case). The inspector did not think that he had used the word "offence" when speaking to the respondent. The inspector had indicated that they were there about a crow cage trap. They had welfare concerns for the buzzards (paragraph [45] of the stated case).

·                Initially the inspector asked fairly general questions; he then began to focus more on matters which could constitute an offence.

[20] In our view, the situation in which the respondent found himself had all the appearances (initially) of a "constructive chat" during which guidance about the cage and its use might be offered by the SSPCA officer. Had the respondent been advised that he was a primary suspect, and that he might be prosecuted for offences in connection with the cage, he might well have wished to have legal assistance. We do not accept in the particular circumstances of this case that the administering of a caution such as that outlined in paragraph [19] above provided sufficient warning that he was the primary suspect facing a possible prosecution against him.

[21] The sheriff then took into account the applicable authorities including McGowan v B 2012 SC (UKSC) 182, Ambrose v Harris 2011 SLT 1005, 2012 SCCR 465, and Procurator Fiscal, Alloa v Hutton and Martin [2011] HCJAC 25 November 2011. He took into account the fact that the respondent was not made aware that, having rejected an offer of legal assistance, he could change his mind at any time and thus be able to request such assistance if and when he began to appreciate that he might be facing prosecution. The sheriff's ultimate conclusions were as set out in paragraphs [65], [66], and [67], noted in paragraph [5] above.

[22] In our opinion, the sheriff's reasoning and conclusion cannot be criticised. The respondent was suspected of the offences of taking and controlling three buzzards, failing to read the general licence and understand the conditions, and using a cage trap which did not carry the required tag or sign. Yet he was not advised (a) of any alleged offences; (b) that he was the suspect in relation to those alleged offences. It was in those circumstances that he declined an offer of access to legal assistance (and was not advised that he could change his mind on that matter). The question of fairness is ultimately one of fact and degree, to be assessed by the judge at first instance: McClory v MacInnes 1992 SLT 501. In our opinion, in the circumstances of this case, the sheriff was well entitled to form the view that the interview had been unfair, for the reasons he gives. It follows that the Crown appeal should be refused.

 

Decision
[23] We answer Questions 1, 2 and 3 in the affirmative, and refuse the Crown appeal.