APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Philip	[2013] HCJAC 160 XJ689/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in the APPEAL UNDER SECTION 174 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   ANTONIO GIOVANNI SABIU   Appellant;   against   PROCURATOR FISCAL, FORT WILLIAM   Respondent:   _____________

Appellant: Targowski, QC; G Sweeney & Co, Glasgow

Respondent: Fairley QC, AD; the Crown Agent

 

7 November 2013

Facts

[1] On 17 February 2012, the police were alerted to information about a telephone conversation between the appellant and FF, a female prisoner, on the previous day, during which it was said that the appellant had threatened to set fire to a van belonging to a named police officer. The police went to the appellant's house in Fort William and told him that they were investigating "threats" made by him. The appellant agreed to go with the police to their van, where he was detained under section 14 of the Criminal Procedure (Scotland) Act 1995. The detention is recorded on the forms subsequently completed as having taken place at the appellant's home address at 4.10pm. The reason for the detention is noted as being that "witness evidence" had caused the police to suspect that he had committed a breach of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and that the appellant had been told this.

[2] The appellant was taken to the local police station, where his arrival was recorded as at 4.25pm. Both at the point of detention and upon arrival at the police station, the appellant was cautioned that he was under no obligation to answer any questions. There then followed the procedure in relation to access to a solicitor prescribed by section 15A of the 1995 Act. This is noted in a Solicitor Access Recording Form (SARF). The appellant was told that he had a right to have intimation of his detention sent to a solicitor, which he requested. This was done. He was also told that he was entitled to a private consultation with a solicitor both before and during the questioning which was to follow. He was told that he could speak to a solicitor by phone and that this could be arranged quickly or he could ask for a solicitor to attend at the police station. He was told that, even if he chose not to take up any of these rights, he could change his mind at any time. He intimated that he understood these rights, but declined to request a consultation, either by telephone or in person with his named solicitor.

[3] This procedure was completed at about 4.30pm. The reason why the appellant declined to consult with a solicitor is unexplained. The appellant did not give evidence at the hearing. In particular, despite the terms of this appeal, there is no evidence to support the contention that the appellant was uncertain of what threats he was about to be questioned about.

[4] The interview commenced at about 4.40pm, although the timing noted on the transcript is 4.20. At the start, and before any questions were asked, the appellant was told that the detention was in relation to a contravention of section 38 of the 2010 Act, "commonly ... previously known perhaps as a breach of the peace". The appellant's rights were repeated and he confirmed that he had understood these rights. He confirmed that he did not wish a private consultation with a solicitor before being questioned. He confirmed that he was told, and understood, that if he wanted to have a private consultation with a solicitor at any other time during police questioning, then he could do so.

[5] The following statement was then made by the police:

"Antonio, ... information has been given to me that you've made ... threats against a serving police officer, an officer who ... actually works from this police station ... intimating that you were going to torch his car or in fact burn his car."

 

The appellant's instant reaction to that statement, which does not contain any form of question at all, was that this was:

"Bullshit. Total rubbish. I don't even speak like that. I don't torch cars. That's fabricated."

[6] The police then did ask a question; notably whether the appellant recalled having a telephone conversation with FF. He admitted that he had had telephone conversations with FF, who was his girlfriend, but that anything he said was "tongue in cheek". He then asked the question "Is this about that prick Brad?"; a remark which was clearly a reference to the policeman whose van was said to have been targeted. The following exchange then occurred:

"Dc2 Well you tell me.

Acc Well maybe it is.

Dc2 Go on then.

Acc Just it was just made a tongue in cheek remark. I'll not look I'll tell you what for the purposes of the tape I'll knock that wee bi sexual prick right out with one f... dig. I don't go about torching cars. If I said something it was in jest and it was tongue in cheek and I didn't mean it. Bring him in here and I'll knock him f... out. Torch his car. Beat it."

 

[7] The interview continued with the police giving further specification of the precise words, which were alleged to have been said in the telephone conversation. The appellant made further threats against the police officer, but these form no part of the charge against him. The police put other allegations to the appellant concerning the contents of letters to the police officer. They asked him if he had approached the officer's house in the early hours of the previous Monday. Again, however, these form no part of the charge.

 

Sheriff Court Proceedings
[8] On 28 February 2012, at the Sheriff Court in Fort William, the appellant appeared on a summary complaint which libelled a breach of section 38 of the 2010 Act based upon the threat in the telephone call only. He pled not guilty and was remanded in custody until a trial diet fixed for 29 March 2012. On that date, the trial was adjourned until 24 May 2012 on the basis that the defence had "had inadequate time to prepare" and this time bail was granted. The next trial diet was adjourned until 3 July 2012. In between these dates, intermediate diets had come and gone.

[9] At the trial diet the appellant lodged a "Devolution Minute", which stated that he intended to raise a devolution issue. The Minute is a free standing application. It seeks no remedy, such as the exclusion of evidence or termination of the proceedings; merely a hearing. It was presented late (Act of Adjournal (Criminal Procedure Rules) 1996 rule 40.3), yet there is no record of the court allowing the issue to be raised late and no apparent cause shown as to why it should have been allowed to be tabled 4 months after the first intermediate diet (28 February 2012).

[10] The Minute contains the following assertions:

"(d) the minuter was not advised prior to the commencement of the interrogation of the specific nature of the allegations against him;

(e) during the interrogation the police officers asked questions concerning at least 5 separate chargeable events, which were disparate in time, place and modus;

(f) the minuter was not re-advised concerning his right to legal assistance concerning any change in the focus of the interrogation from one potentially chargeable event to another;

(g) even though advised by the minuter that he did not wish to continue participation in the interrogation, the police officers failed to desist in their line of questioning;

(h) the minuter made certain replies during the interrogation which were contrary to his interests;

(i) the case against the minuter lacks corroboration without these replies".

 

The Minute proceeds to rehearse certain well-known principles of general European Convention jurisprudence and cites a selection of cases before, ultimately, setting out a contention that:

"ix) The minuter has been denied a fair trial in that he has been deprived of effective access to legal representation during the interrogation. He has therefore been deprived of effective legal assistance, in the circumstances of his particular case, to which he is entitled under Article 6(3)(b) and (c) of the Convention. Accordingly there is an inequality of arms between the Crown and the defence. Further there has been an actual inability to obtain adequate and appropriate representation in this case so as to safeguard his Convention rights to a fair trial. He was not fully and properly informed of his rights in respect of his right against self-incrimination and his right to legal advice, such that his failure to seek legal advice constituted a voluntary, knowing and intelligent relinquishment of those rights".

 

It is also said that:

"xii) The right to effective participation in criminal proceedings and the application of informed consent require that [the appellant] be dealt with in a manner which takes account of any vulnerability and his capacity to understand the language and procedures being followed. Here there were no steps taken to ensure that this was done or that he had an understanding of the purpose of the interrogation and could reasonably foresee the consequences of making any statements".

 

It appears therefore that the primary contention of the appellant was to be that the appellant had not had effective access to a solicitor at interview, in that he had not made an informed waiver of his right to access legal representation in terms of Article 6.3(c) because he had not been fully informed of this right. There was, however, no suggestion that the appellant was, in any way, vulnerable or lacked the capacity to understand what was said to him.

[11] The proceedings at the Sheriff Court continued at a leisurely pace with diets to hear the Issue occurring on 1 and 28 August, by which time some testimony of the officers had been adduced. There were further diets on 27 September, 24 October, 21 November, 19 December and 12 February 2013, when the cause was transferred to Oban. The hearing resumed on 9 May and continued on the following day and on 1, 2 and 5 July.

[12] In his report, the sheriff records that the appellant's submissions to him are reflected in paragraphs 1 to 3 of the Note of Appeal to this court. Certainly, paragraph 1 raises the issue of whether the appellant was afforded his right to legal representation at interview. However, paragraph 3(i) introduces a quite separate matter; that is whether section 14 itself and the procedure set out in the SARF are, as a generality, compatible with Article 6.3(a). The contention is that neither ensures that suspects are informed "in detail, of the nature and cause of the accusation" prior to being questioned. In the absence of detail, it is said, the appellant had not been adequately fore-warned and could not be said to have effectively waived his right to access legal representation. There is a second matter raised in paragraph 3(ii), which alleges that the police had "contrived to keep the appellant in a state of ignorance ... until they posed questions" on the particular matter. Paragraph 3(iii) raises an equality of arms point at interview, but this is not elaborated.

[13] In the event, the sheriff "dismissed" the minute on the basis that he had not been persuaded that either the process of the appellant's detention or the conduct of the interview were either incompatible with Article 6 or unfair at common law, such as to justify exclusion of the appellant's admissions from the evidence to be adduced at trial. In reaching that view, the sheriff considered that the appellant had not been charged with an offence at the time of his detention (cf Eckle v Germany (1983) 5 EHRR 1). Rather, his detention was "on suspicion of having committed an offence". The whole circumstances of the detention required to be considered in the context of whether a fair trial was irretrievably jeopardised. The information, which had been given to the appellant when he was detained, was perfectly sufficient to alert him to the general nature of what the police wished to talk to him about and did not amount to unfairness (GFR v HM Advocate 2013 SCCR 164). The sheriff took the view that the time for specification of the component parts of a charge was when the appellant was formally charged by the police, or later served with the complaint. At that later stage the accused could raise any lack of specification with the court.

 

Submissions
[14] The appeal to this court was restricted to the contention that section 14 of the 1995 Act and the process as set out in SARF are both incompatible with Article 6.3(a) because they do not ensure that detained persons are informed "in detail, of the nature and cause of the accusation" prior to what the appellant insisted upon describing as "interrogation". The appellant had not been properly apprised of the nature of the allegations prior to waiving his right of access to a solicitor. He could not have made a truly informed decision as to whether he required legal assistance prior to, or during, questioning.

[15] In so far as GFR v HM Advocate (supra) was to the opposite effect, it could be distinguished by reason of the absence of any reference to the Convention jurisprudence in its reasoning. The right to be informed in detail had also not been addressed in McGowan v B 2012 SC (UKSC) 182. It was accepted that not all the subsidiary Article 6 rights come into play at the same time (O'Neill v HM Advocate 2013 SCCR 401), but the "trial" had begun with the interview and the appellant had by then been "charged" in the Convention sense by being detained (Ambrose v Harris 2012 SC (UKSC) 53, Lord Hope at paras 62 and 63, following Deweer v Belgium [1980] 2 EHRR 439, Eckle v Germany (supra), Shabelnik v Ukraine, unreported, 19 February 2009, no 16404/03; and Corigliano v Italy (1982) 5 EHRR 334). The court did not understand the subsidiary arguments in the Note of Appeal to be pressed.

[16] In relation to the law, the advocate depute pointed out that, whereas it was Article 6.3(a) which was now founded upon, the Devolution Minute had only referred to Articles 6.3(b) and (c). What had been complained about was the absence of an informed waiver of the Salduz right to legal representation (Salduz v Turkey (2009) 49 EHRR 19). That issue had been considered in McGowan (supra), in which, it was significant, there was no cross fertilisation of the 6.3(c) right from that under 67.3(a), which itself was irrelevant to waiver. As was said in O'Neill v HM Advocate (supra, at para [31]) the rights do not all arise at the same time as that to access legal representation. The appellant had identified no European Convention jurisprudence to suggest that either McGowan or GFR (supra) had been wrongly decided.

[17] In relation to the facts, the advocate depute submitted that the appellant had been told, within half an hour or so of his detention, exactly what was being investigated. He had also been told, in relation to solicitor access, that he could seek a consultation at any time, but declined to do so.

 

Decision
[18] Section 14(6) of the Criminal Procedure (Scotland) Act 1995 provides that:

"At the time when a constable detains a person ... he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention."

 

This section is not concerned with compliance with a person's Article 6 rights but with those under Article 5 and, in particular Article 5.2 which states that:

"Everyone who is arrested shall be informed promptly... of the reasons for his arrest and of any charge against him."

 

The reason for this provision is to enable a detained person to challenge the grounds for his arrest under Article 5.4 (Fox v United Kingdom (1990) 13 EHRR 157 at para 40). It has nothing to do with a suspect's Article 6 rights. These are secured elsewhere in the 1995 Act. It follows that, although it is correct that section 14(6) does not meet the requirements of Article 6.3(a), that is because it is not intended to do so. It is, however, compatible with Article 5.2 and, in that sense, with the Convention in general. The appellant's challenge to section 14(6) as a generality, which was in any event not properly raised in the Devolution Minute, therefore fails.

[19] Article 6.3 relates to persons who have, in a Convention sense, been "charged with a criminal offence". The term "charged" has an autonomous meaning in Convention jurisprudence and refers to the point at which "official notification [is] given to an individual by the competent authority of an allegation that he has committed a criminal offence" (Deweer v Belgium (1990) 2 EHRR 439, paras 42 and 44 and Eckle v Germany (1983) 5 EHRR 1, para 73). There is no doubt that the appellant's Article 6 rights became engaged once he had been detained on suspicion of making "threats". Once in detention, he was entitled to the services of a lawyer. This right is not confined to situations where the suspect is to be questioned but to all custodies (Dayanan v Turkey, 13 October 2009, no 7377/03, para 31). Such a right also arises prior to "the first interrogation of the suspect by the police" (Salduz v Turkey (2008) 49 EHRR 19 at para 55); the word "interrogation" being used in the Convention sense of formal questioning rather than in the Scottish sense of illegal questioning.

[20] The appellant was advised of his right to a solicitor almost immediately after his arrival at the police station. He declined to exercise that right. The appellant contends that he did not validly waive that right because he was not given detailed information on the nature and cause of the accusation against him. There are three difficulties with this contention. First, there is no authority for the proposition that the Article 6.3(a) right requires to be complied with prior to questioning a suspect. This right, as a subsidiary element to the general right to a fair hearing, is designed to ensure that an accused person is able to prepare his defence (C v Italy 1988 DR 56 p 57 no 10889/84, Commission Decision, 11 May 1988). This is achieved at the stage of serving a formal complaint or indictment upon the accused. In that regard, it is clear from the nature of the sub-rights in Article 6.3 that they do not all emerge together; albeit that they must be afforded to the accused person during the trial process. Had this been properly raised as an argument in the Devolution Minute, it would not have been sustained. In the event, it was not so raised.

[21] Secondly, there is authority which directly contradicts the proposition; namely GFR v HM Advocate 2013 SCCR 164. It is not possible to distinguish GFR from the appellant's case on the basis that the court in GFR did not consider the Article 6 jurisprudence. From the court's reliance on McGowan v B 2012 SC (UKSC) 182, it is plain that the court did have the Convention jurisprudence firmly in mind.

[22] Thirdly, the fact is that before he was questioned, and having been informed of his rights, including that he could request access to a solicitor at any time, the appellant was told of exactly what was being investigated; notably that he had made threats to burn a serving policeman's car. The first question contains a statement that it is alleged that the threat was made during a telephone conversation with FF. Before the appellant made any incriminating reply, he was therefore aware of his rights and of the detail of the allegation which was, so far as relevant to this process, being investigated.

[23] The issue which was properly raised and falls to be determined is whether the appellant validly waived his right to legal representation. In McGowan v B (supra), having considered a wide range of precedents from the European Court of Human Rights and elsewhere, Lord Hope said (at para [46]) that:

"Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily."

 

Lord Hope expressly considered (at para [48] et seq) the SARF procedure and made two suggestions in order to ensure that the right was effective. Neither involved a detailed explanation of the allegation in advance of stating the suspect's right to legal representation. Indeed, such an explanation would be both impracticable and potentially unfair. In relation to the former, at the earliest stage of an investigation, the police are unlikely to be in a position to provide such detail. In relation to the latter, putting the allegation before the suspect is afforded his rights may prompt a response before the suspect understands these rights and can act upon them. In this case, the appellant was told why he was being detained by reference to the generality of having made threats. He was then told what his rights were and this was followed at the start of the interview by a further statement of the generality, repetition of the appellant's rights and provision of the details of the initial subject matter of the interview.

[24] For these reasons the appeal must be refused. However, as noted above, it remains important to stress the need to follow the proper procedures in relation to the raising of a Devolution or, now, Compatibility Issue. Such issues do not exist in isolation. They require to be attached to some competent remedy sought by the accused in the criminal process. This could be the exclusion of evidence or a plea in bar of trial. Whatever it is, it should be stated. All that this Minute did was seek the appointment of a hearing. Furthermore, the proper time for raising such an issue in a summary case is at the first intermediate diet; and not months later. No explanation is provided in the papers about why the Issue was allowed to proceed, long after it should have been stated.