Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 110

HCA/2014/5319/XJ

Lord Justice Clerk

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL BY STATED CASE

by

STUART BARCLAY

Appellant;

against

PROCURATOR FISCAL, AYR

Respondent:

Appellant: Alonzi; Faculty Appeal Services (for Logans, Cumnock)

Respondent:  Prentice QC AD; the Crown Agent

16 October 2015

Introduction

[1]        On 2 October 2014 after a trial at Ayr Sheriff Court the appellant was convicted on summary complaint of a contravention of section 3 of the Sexual Offences (Scotland) Act 2009 and an assault to injury.  On 10 December 2014, he was sentenced to six months imprisonment.  This appeal is against conviction alone.

[2]        The appellant had pleaded not guilty to both charges when he had appeared at the first calling on 7 October 2013.  The matter eventually proceeded to trial after earlier diets had been adjourned on three occasions and the Intermediate Diet had been continued on six occasions, five of which were on the unopposed motions of the appellant to allow him more time to prepare.

[3]        Notwithstanding the procedural history, at the commencement of the trial the appellant was allowed to raise a Compatibility Issue Minute (cf Act of Adjournal (Criminal Procedural Rules) 1996, rule 40.3).  No objection was taken on the grounds of its lateness.  The issue was whether the content of the appellant’s recorded interview when detained should be ruled as inadmissible on the ground that, as was not disputed, the appellant was suffering from a mental illness, namely schizophrenia, at the time.

Facts

[4]        In so far as relevant to the appeal, the sheriff found in fact that the appellant had been detained on 16 January 2013 and interviewed by the police under tape recorded conditions.  He had been duly cautioned and advised of his right of access to a solicitor, which he declined.  The appellant had understood that right.  The police had had no reason to suspect that the appellant was suffering from mental illness at the time.  A police surgeon had stated his opinion that the appellant was fit to be interviewed.  

[5]        There is no specific finding in fact that the appellant was fit to be interviewed despite the reference to the police surgeon’s opinion.  However, in a note, the sheriff explains that the appellant’s witness, Dr Macklin, a consultant psychiatrist, had “conceded” that “there was no evidence that [the appellant’s judgment] was … impaired. … [O]n balance the appellant did understand the process including his rights of access to a solicitor”.  In a section headed “Decision”, the sheriff repeated his findings that the police casualty surgeon had certified the appellant as fit to be interviewed.  The sheriff “accordingly concluded that there was no unfairness so far as this aspect of the issue was concerned”. 

Submissions
[6]        The appellant submitted that the interview should not have been admitted because it had been unfairly obtained. The appellant had been a vulnerable adult when he was detained.  He was incapable of granting an informed waiver of his right of access to a solicitor. Whether or not the officers conducting the interview were aware of the appellant’s vulnerability, it nonetheless existed. The mere fact of the appellant’s mental illness required the provision of additional safeguards. The sheriff had erred in placing too much emphasis upon the police officers’ ignorance, and too little weight on the appellant’s schizophrenia.  In assessing fairness, the sheriff had failed to factor into the balance the coercive pressures inherent in all police detention and questioning. 

[7]        The advocate depute countered that the interview had not been unfair and the evidence derived therefrom had been admissible.  Neither immediately prior to, nor during, the police interview, had there been any indication that the appellant was suffering from a mental illness and thereby could not understand his rights.  The appellant’s waiver was informed, voluntary and unequivocal.  The appellant had been aware of the consequences of waiving his right of access.  His responses at interview had been indicative of this.  The appellant had, on the one hand, provided no evidence that he was unfit to be interviewed, or that a person suffering from schizophrenia was, for that reason, incapable of rational thought and speech.  There was, on the other hand, evidence, accepted by the sheriff, that the appellant was fit to be interviewed.

Decision
[8]        A suspect must be advised that he is entitled to access to a solicitor prior to being questioned by the police (Criminal Procedure (Scotland) Act 1995, s.15A(3) and (6)).  A suspect may waive that right.  For any waiver to be valid, it must be informed, voluntary and unequivocal.  The appellant confirmed several times to the police that he did not wish to exercise his right of solicitor access.   

[9]        It is essentially a question of fact for the determination of the court at first instance whether a suspect understood the implications of refusing legal assistance.  There was no evidence before the sheriff that the appellant was unfit to be interviewed.  Two doctors were of the opposite view.  Against this background, the sheriff was entitled to reach the conclusion of fact which he did.  The appellant had validly waived his right of access to a solicitor.  The statements made by the appellant had been fairly obtained.

[10]      The court answers the four questions in the negative and refuses the appeal.