Appellant: Targowski QC, McLaughlin; John Pryde & Co (for Sweeney & Co, Glasgow)

Respondent: Scullion AD; the Crown Agent

5 December 2013

[1] The appellant has been charged, on a summary complaint at Glasgow Sheriff Court, with a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The offence is said to have been committed as long ago as July 2012 and consists of a libel of behaving in a threatening or abusive manner towards his wife at their address in Seamill Street by shouting and swearing at her and refusing her access to the house. The reason that the limited nature of the conduct is important to note, in limine, is because of the prolonged and convoluted procedure which has followed upon this simple summary prosecution which, even now, has not yet been disposed of.

[2] The case first called at a pleading diet on 23 July 2012, when the appellant sought to raise what was then described as a devolution issue and which became a compatibility issue, based upon certain assertions of fact. These are that: (1) the appellant is a vulnerable adult; (2) he was detained on Friday 20 July 2012; (3) he advised the police that his solicitor was Gerard Sweeney; (4) the police did not contact Mr Sweeney, but advised the Scottish Legal Aid Board; (5) SLAB advised Mr Sweeney that the appellant was detained and seeking Mr Sweeney's advice; (6) Mr Sweeney was unable to provide "practical and effective" advice as the Criminal Legal Assistance (Scotland) (Duty Solicitors) Regulations 2011 operate a "systematic restriction" on the appellant's right to choose his legal representation; (7) the appellant was "interrogated" by the police and made statements against his interest; (8) this "interrogation" was conducted without the benefit of legal advice from Mr Sweeney; (9) the minuter was thus deprived of Mr Sweeney's guidance on the benefits of making exculpatory statements and of any beneficial intervention during the "interrogation process"; (10) the case against the appellant benefits from the incriminatory statements and from the lack of any exculpatory statements which could have been made by the appellant, had he been given advice by Mr Sweeney; and (11) the appellant has been deprived of the holistic benefits of representation by his nominated solicitor as guaranteed by the European Convention.

[3] The Compatibility Issue Minute contains references to the Human Rights Act 1998 and the Convention itself. It cites approximately 10 relatively well-known European Court cases on Article 6 rights and McGowan v B 2012 SC (UKSC) 182. It also quotes from the recommendation of the Committee of Ministers on the Freedom of Exercise of the Profession of Lawyer and from the United Nations High Commissioner on Human Rights on the basic principles on the role of lawyers. None of the cases or the quotations are directly in point, and some not remotely so. At the hearing of the appeal, counsel rightly did not seek to rely upon any of them.

[4] The Minute seeks an order from the sheriff to hold that the 2011 Regulations, or their interpretation by the Scottish Legal Aid Board, are incompatible with Article 6. It also seeks a determination by the sheriff that the "interrogation" of the appellant was unlawful and that the statements were obtained unlawfully. Finally, it seeks a determination that there has been an "irretrievable breach" of the appellant's Article 6 rights by reason of his being denied "practical and effective" representation from his nominated solicitor whilst in police custody. Although the remedy is not referred to in the Minute, the appellant is presumably tendering a plea in bar of trial.

[5] When the case called at the diet of 23 July (supra), the appellant was already represented by Mr Sweeney. It is to be assumed, from the lodging of the then Devolution Minute at that diet, that the appellant had already had a consultation with Mr Sweeney before his first appearance in court. What then happened was that the court appointed a trial diet for 17 December 2012 and an intermediate diet, at which the Devolution Minute was to be heard, for 4 December 2012. On the latter date, a diet of "debate" was fixed for 11 March 2013. The debate eventually took place over 3 days in July and August 2013.

[6] The sheriff reports that the debate consisted of Mr Sweeney presenting him with a CD containing a substantial number of authorities, which he said he was relying upon but which he did not actually refer to in the course of what must have been a very lengthy oral argument. Similar considerations applied to a significant bundle of papers relating to Mr Sweeney's correspondence with the Scottish Legal Aid Board. What was, however, usefully ascertained during the course of the debate were some of the facts which related, not to Mr Sweeney's position, but to that of the appellant. It was not disputed in that regard that the appellant was a vulnerable adult. An appropriate adult had been obtained for him in the police station in order to provide him with support, to assist his understanding of the proceedings and any questions and to ensure that he was not unduly distressed. When he was told that he was to be questioned, the appellant had asked for Mr Sweeney.

[7] In accordance with established practice, the police telephoned the SLAB to arrange whatever representation was requested and available. In terms of the 2011 Regulations (reg 3), the SLAB are obliged to arrange for a solicitor to be available for the purpose of providing detainees with legal advice and assistance prior to questioning and in certain other circumstances. The service is provided under and in terms of the SLAB's Police Station Duty Scheme. It is available on a 24 hour basis. All solicitors can apply to be on the list of persons available to assist. The advice given is paid for under the Legal Advice and Assistance Scheme and is in addition to fees paid under the Advice by Way of Representation Scheme or Summary Criminal Legal Aid, which cut in once a person is to appear in court and is served with a complaint. Suspects can nominate a particular solicitor but, if he is not on the list, he will not be paid under the Advice and Assistance Scheme. Mr Sweeney has elected, for his own reasons, not to be on the list. He declined to attend upon the appellant when he was contacted by the SLAB. In accordance with the Police Station Duty Scheme, the SLAB arranged for another solicitor to attend upon the appellant. This solicitor decided that the appellant was in such a distressed state that he was not fit for interview. His concerns were conveyed to the police, but they decided to continue with the interview, notwithstanding the solicitor's protestations. The solicitor withdrew from the proceedings, rather than afford them his tacit approval. There is no specification of what advice was tendered to the appellant. The interview continued with the police, the appellant and the appropriate adult.

[8] Thus far, the court might have concerns about the fairness of the proceedings at least in common law terms. However, the respondent has accepted, and did so before the sheriff, that the procedure adopted by the police was not appropriate and that it is not the intention of the respondent to lead any evidence of the interview at the trial. On the basis that the interview was not to form any part of the case against the appellant, the sheriff refused the craves in the Minute. He granted leave to appeal.

[9] The Note of Appeal raises a number of complaints about the sheriff's failure to take into account the submissions and the authorities referred to by Mr Sweeney during the course of the debate. These are largely of little relevance now, since this court is entitled to revisit the matter upon such submissions and authorities as may be presented to it and to determine the matter afresh. It is clear in that regard that there is no issue about the admissibility of the interview. What remains in terms of the Compatibility Issue Minute is a contention, which is phased in only the most general of terms, that the 2011 Regulations, or their interpretation by the SLAB, are incompatible with Article 6. Since all the Regulations do (in the context of this case) is provide that the SLAB is to arrange for a solicitor to be available to give advice and assistance to detainees, it is impossible to see how, at least without some clue as to the basis for the challenge, they can be regarded as incompatible with the Convention. That leaves only the SLAB's interpretation for consideration and also the contention that, despite the exclusion of the interview, there has been an "irretrievable breach" of the appellant's Article 6 rights.

[10] Since the SLAB are not a party to these proceedings, any decision in this process has no binding effect upon them or the arrangements which they have made in compliance with their duties under the 2011 Regulations. If the appellant and/or Mr Sweeney wish to challenge the actions of the SLAB as amounting to an infringement of their human rights, they must do so in the proper process; that is a petition for judicial review (see Nisbet v Butt 2012 SCCR 649, Lord Carloway at paras [18]-[20]; cf HM Advocate v McCrossan 2013 SCCR 524). In that event, they will no doubt be able to state what the nature of the infringement might be. In the context of a summary criminal prosecution, a Compatibility Issue relative to Article 6 can generally only arise if it is connected to some form of contention, either that the proceedings themselves should be halted on the grounds of inevitable unfairness (see Buchanan v McLean 2001 SCCR 475, Lord Clyde at para 51, citing Imbrioscia v Switzerland, para 38 (see also HM Advocate v McCrossan (supra), Lady Paton at para [24])), or that some part of the trial, including the hearing of particular evidence, should be excluded from the process. The issue of the exclusion of evidence does not now arise given the concession from the respondent. The only issue remaining then is whether there will inevitably be unfairness in the appellant's trial as a result of the procedure which took place following the appellant's detention.

[11] It is impossible to sustain such an assertion. The appellant was provided with access to legal advice and assistance in advance of his detention as required by the emergency legislation (Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010) following upon the interpretation of the requirements of Article 6 by the United Kingdom Supreme Court in Cadder v HM Advocate 2011 SC (UKSC) 13. He asked to see Mr Sweeney, but Mr Sweeney declined to assist because of what appears to be some dispute he has with the SLAB.

[12] In accordance with the statutory requirement to allow a detainee an appropriate private consultation with a solicitor (Criminal Procedure (Scotland) Act 1995, s 15A(3), introduced by the emergency legislation), the appellant was provided with the services of a solicitor in the police station. There is no criticism of the actions or advice given by this solicitor. In these circumstances, in the appellant's case, the requirement to provide access to a lawyer implied in Article 6 appears to have been complied with. In that regard, at least in legal aid cases, there is no absolute right to choose a particular solicitor (Croissant v Germany (1993) 16 EHRR 135 at para 29).

[13] The appeal is refused.