Issue 48 February 2010 - Current Awareness: Criminal Procedure, Salduz
CRIMINAL PROCEDURE - MacLean v HMA [2009] HCJAC 97
Based on the decision of the Grand Chamber of European Court of Human Rights in Salduz v Turkey (36391/02, November 27, 2008), a person accused of car theft and wilful fire-raising argued that his rights under arts 6(1) and 6(3) (c) were breached. While being detained under s.14 of the Criminal Procedure (Scotland) Act 1995, he did not have access to a solicitor when interviewed by police. He claimed that what he had told police during that interview should not be used as evidence against him at trial. He was interviewed under caution and the interview was taped and video recorded. The Crown accepted that what had been said at interview was likely to be material evidence at trial. The sheriff referred the devolution minute brought by the accused to the High Court.
Held: A bench of seven judges held that the absence of a lawyer during interview did not constitute unfairness, nor a breach of art.6(l) or 6(3)(c).
(1) In Salduz it was argued that there had been an alleged violation of art.6(3)(c). However, the Grand Chamber recognised in its reasoning, rightly, that this provision could not be addressed in isolation from art.6(l). In some circumstances it may be relevant to ask whether there has been a sole violation of art.6(3)(c), however, the relevant question in this case is whether the fact that the minuter did not have access to a solicitor prior to being interviewed by the police would render unfair any trial in which reliance is placed by the prosecutor on his responses during that interview The critical issue is, thus, whether there is a prospective violation of art.6(l).
(2) Furthermore, the judgment in Salduz open to interpretation. The court found that art.6(l) requires that "as a rule" access to a lawyer should be provided, "unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right". This requirement is subject to exception where such a particular demonstration is made.
(3) Furthermore, the requirement applies only "as a rule". The High Court took this to mean that the European Court may, while indicating what is generally expected, recognise that the issue as to whether or not there has been a fair trial will depend on the particular circumstances of the case. These circumstances can include what arrangements the jurisdiction in question has made for access to legal advice, compared to the guarantees that are otherwise in place in that jurisdiction to secure a fair trial.
(4) The European Court has consistently taken the view that questions of the admissibility of evidence are principally matters for the domestic courts (Brennan v United Kingdom (2002) 34 EHRR 507, at para.51). However, a certain flexibility in the application of the requirement was recognised by the European Court, who found it appropriate to discuss the application of the general principles to the case before it - rather than holding that lack of access to a lawyer ipso facto led to a violation.
(5) Accordingly, there would be no violation provided that the guarantees otherwise available under the Scottish system are sufficient to secure a fair trial for a person who, while detained, is interviewed by police officers without access to a lawyer and at whose trial his responses are relied on by the prosecution.
(6) Scots law contains a number of safeguards regarding persons in detention and, therefore, does offer sufficient guarantees. Before being questioned by the police the detainee must be cautioned that he need not answer any questions other than certain formal particulars but that, if he does answer, his answers will be recorded and may be used in evidence. In all serious cases the interview is tape-recorded, indeed in some cases, video recorded, with the tape or tapes sealed at the conclusion of the interview.
(7) While the police may question the detainee - and may do so persistently and robustly - they are not entitled to coerce him or otherwise to treat him unfairly. Challenges to admissibility on such grounds may be made either in advance of the trial or in its course.
(8) The accused is entitled to give evidence as to the circumstances of the questioning during detention without being required to answer any questions as to the substance of the charge or charges; thus his right to silence at his trial is protected and the onus of proving that any admission made by the accused in the course of detention was fairly elicited is on the prosecution (Thompson v Crowe, 2000 J.C. 173). The trial judge must rule on the challenge to admissibility by either excluding or admitting the answers into evidence. Even when the judge admits the answers, the jury in solemn cases is entitled to take into account the circumstances in which any incriminating answers were given and, if they think fit, to give no or little weight to such answers.
(9) The jury is expressly directed at the trial that it may not draw any negative inference towards the accused for declining to answer police questions. Even if the accused makes an admission during detention that is held to have been freely and voluntarily given in fair circumstances, he cannot be convicted on the basis of that admission alone.
(10) A person may not be detained for more than six hours; and he must be informed immediately upon the termination of his detention that his detention has been terminated. He may not be further detained on the same grounds or on any ground arising out of the same circumstances. Although a detained person has no right to have access to a lawyer before being questioned, he is en-tided to have the fact and the place of his detention intimated without unreasonable delay to a solicitor and to one other person reasonably named by him. Additionally, the police may, if they think fit, allow a lawyer or other person to be present during the detention. This discretion is likely to be exercised where the detainee is perceived to be a vulnerable person.
(11) Even assuming that the foregoing interpretation of Salduz was wrong, the High Court had to consider its affect on the basis of that assumption. The Grand Chamber's judgment was not binding and, under s.2(l)(a) of the Human Rights Act 1998, at most the High Court had to "take into account" judgments of the European Court, which authoritatively expounds the interpretation rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. Even if, contrary to their view, the Grand Chamber in Salduz established the principle that art6 requires access to a lawyer to be provided from the first police interrogation of a suspect, the High Court was satisfied that that principle could not, and should not, be applied without qualification in Scotland. In particular, there is no violation of art.6 if other safeguards to secure a fair trial of the kind described are in place, notwithstanding that a lawyer was not so provided.
Comment: One might ponder if the alternative position of the High Court on the true interpretation of Salduz, in fact a rejection of the correctness of that decision? If so it is perhaps the first time the High Court has expressly declined to follow a decision of the Grand Chamber and in such a way that clearly asserts that the other safeguards mentioned by the High Court offer at least equivalent protection to the presence of a lawyer at interview. With all due respect, one might question whether the safeguards offered are such an equivalent Might it not be said that all of the safeguards offered do not come dose to that offered by the presence of lawyer? In any further proceedings thought might have to be given to the extent to which Scots law is consistent with general European practice. If a trend in favour of the presence of a lawyer can be detected then it might be harder to justify a departure from that trend. In that regard, the ruling in Maclean represents a significant divergence from our nearest legal neighbours, England and Wales, where access to a lawyer during police interviews is assumed under the Police and Criminal Evidence Act 1984. Any departure from this requires justification from the police. Likewise, in France any person brought into police custody has the right to discuss his case with a lawyer and in Germany, according to para. 136 StPO (Strafprozessordnung, or "Criminal Procedure Code"), before any interrogation begins a suspect, arrested or not, must be informed about his right to consult a lawyer before the interview.