Issue 49 June 2010 - The Scots Law of Confession - Irretrievably Prejudicing the Rights of Suspects?
Neale B. McDonald was supported and encouraged by Professor James L. Murdoch in the production of this article. Special thanks to Sheriff Nigel Morrison QC and to Michael Macintosh.
This article will explain the significance in terms of the art.6 right to a fair trial of the recent developments in the Strasbourg jurisprudence begun by the case of Salduz v Turkey (App. No.36391 /02). It will examine the wider implications of these changes in the context of Scots criminal law and procedure.
The safeguards pertaining to the questioning of detained persons in Scots law are contained in ss.14 and 15 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") and in domestic jurisprudence. Amongst the most notable protections are: the limitation of the legal period of detention without charge to a maximum of six hours1, the imposition of a duty on arresting officers to caution detainees and to inform them of their right to remain silent without prejudice to their defence2 and the right of any detainee to have intimation of their detention sent to a solicitor3. At domestic level, it has been judicially observed that these safeguards, "have been framed in such a way as to provide appropriate checks and balances in the interests of fairness to the accused"4.
In the recent case of Salduz v Turkey, it was held that, "as a rule", access to a lawyer should be provided to police suspects "unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right"5. This constitutes an important development of the Strasbourg approach to the notion of the right to a fair trial protected by art.6 of the European Convention on Human Rights ("the Convention"). Clearly, the Salduz rule also has significant potential to affect the much lauded Scots law safeguards outlined above.
Interpreting Salduz: the Scottish predicament
Article 6(3)(c) of the Convention protects the right of a person facing a criminal6 charge7 "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". Whilst in some circumstances it may be relevant to ask whether there has been a violation of art.6(3) (c) in isolation, the relevant question in instances where a suspect is detained and questioned by police without legal representation under the 1995 Act is whether the absence of a solicitor at that junction renders the subsequent criminal proceedings unfair. Paragraphs (2) and (3) of art.6 "represent specific applications of the general principle stated in paragraph 1 of the Article" and "are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings"8. The paragraphs must therefore be considered in conjunction with each other.
It has long been established that the admissibility of evidence in criminal proceedings is primarily a matter for determination at domestic law9. Accordingly, in art.6 cases, the remit of the European Court of Human Rights ("the Court") is to assess whether the proceedings as a whole10, including the way in which the evidence was obtained, were fair11.
In Harvie v Macioca12, Sheriff Horsburgh QC rejected the defence solicitor's contention that the Salduz judgment had superseded the Paton (Gary Alexander) v Ritchie13 decision. It was argued unsuccessfully that, in light of Salduz, suspects interviewed under detention in Scotland should have access to legal advice as a matter of right and no longer as a matter of admissibility to be determined on the basis of fairness.
Sheriff Horsburgh QC was equally unconvinced that, where a suspect is unrepresented at the stage of investigation, there is no equality of arms. It was held that the Grand Chamber in Salduz had not intended to create such an absolute right and that the question of legal representation in such instances should continue to be considered as merely one factor in the overall consideration of fairness, particularly in light of the aforementioned Scots law safeguards.
The High Court of Justiciary sitting as a Court of Appeal in the case of HM Advocate v McLean14 echoed this sentiment, citing the opinion of Judge Bratza in the Salduz judgment that the principle being enunciated was "consistent with the Court's earlier case-law".
A concerning point is that this reaction does not square well with s.2 of the Human Rights Act 1998, which obliges States to "take into account" the jurisprudence of the Court. This matter was addressed in McLean. In the English case of R (Anderson) v Home Secretary the House of Lords, sitting as a final court of appeal in an English process of judicial review, held that the House of Lords should "not without good reason depart from the principles laid down in a carefully considered judgment of the Court sitting as a Grand Chamber"15. In McLean, it is stated that Salduz’s implications for the Scottish legal system may not be considered to have been "carefully considered" given that Scotland was not a party to the process and that in such circumstances the Scottish Courts are not required to apply its ruling16. There is cause to suggest that such difficulties would not arise if the Court, like its sister the European Court of the European Union ("EU"), were to permit states to appear as "interested parties" in cases.
This could arguably represent an unsettling anomaly in the application of European Human Rights Law in that Scotland would seem to be purporting that her safeguards for detainees are so robust that she need not take heed of what Strasbourg "would generally expect"17 in relation to the rights protected under art.6. Scotland's reluctance to kneel before Strasbourg's view is, perhaps, understandable due to the proud reputation as a pioneer of the protection of fairness in criminal proceedings that she has gained in recent history. For example, as early as the 1880s, it was illegal in Scots law for an individual to be detained for longer than 110 days without trial18. It is little wonder, then, that English criminal procedure was amended to adopt a number of procedural rules from north of the border during the 19th and 20th centuries.
Pischalnikov: championing the Salduz "right"
The right against self-incrimination is a fundamental tenet of both civil liberty and democracy. It lies at the very heart of the notion of a fair trial under art.6(l). National laws may attach consequences to the actions of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings.
In the case of Pischalnikov v Russia19, the Court asserted that the evidence obtained during this stage "determines the framework in which the offence charged will be considered at the trial"20 and is therefore of critical importance to the holistic fairness of any such trial. The Court opined that, in the preliminary stages of any criminal investigation, an accused is generally in a state of vulnerability which, "can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself"21. The Court went on to comment that it was:
"[M]indful that the applicant may not have had sufficient knowledge, experience, or even sufficient self-confidence to make the best choice without the advice and support of a lawyer. It is possible that he did not object to further questioning in the absence of legal assistance, seeing the confession (true or not) as the only way to end the interrogation. Given the lack of legal assistance the Court considers it also unlikely that the applicant could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of counsel in a criminal case"22.
Moreover, the Court stated that it is: "(O)f the opinion that an accused ... who had expressed his desire to participate in investigative steps only through counsel, should not be subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police or prosecution"23. The 1995 Act, which permits suspects merely to have intimation of their detention sent to a lawyer, would appear to provide inadequate protection in terms of art.6 in this respect.
In Salduz it was held that, "the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction"24. The Court reiterated this in the Pischalnikov judgment25. In that case, the fact that the applicant's conviction was founded on other evidence was held to be of little consequence in light of the fact that the statement given was decisive for the prospects of the applicant's defence and was a significant factor in his conviction26. Similarly, Salduz held that no inferences may be drawn from the mere fact that an accused has been cautioned27 . It was reiterated in Pischalnikov that a caution in itself "barely meets the minimum aim of acquainting the accused with the rights which the law confirms on him"28.
The effect of Pischalnikov’s consolidation of these points on the Scottish situation is, albeit indirectly, to portray Scots criminal law in a somewhat unfavourable light.
What now?
Some may suggest that the Salduz judgment merely reflects the peculiarities of its geographical origins and that this sets it apart from the Scottish situation. The partisans of this viewpoint would argue that, unlike Scotland, certain (predominantly Turkish and Eastern European) States suffer from police practices and standards of criminal justice which inherently fall woefully short of the requirements of art.6. There are other question marks hanging over the application of Salduz in Scotland such as the fact that the eponymous detainee was only 17 years old and would probably have been interviewed in the presence of a legal guardian in Scotland.
Furthermore, the Salduz judgment is not without its downsides if it is taken to its natural conclusion. It could feasibly create a situation in Scotland where the police, upon crossing paths with someone carrying a bloodied knife in the street, would not be able to challenge that individual by way of questioning until a lawyer is present. It is understood that many legal practitioners in Scotland report that many interviews conducted under s.14 of the 1995 Act in fact bear no fruit of evidential value anyway, and would have strong reservations about burdening the authorities with the more rigid procedure that Salduz would impose.
It would appear, nonetheless, that the "rule" is to be treated as such. Salduz and subsequent cases which adopt analogous reasoning quite clearly and unequivocally demonstrate that access to legal representation must be made available to police detainees, save in exceptional circumstances, if the requirements of art.6 are to be met. Both Salduz and Pischalnikov (particularly the latter) use language implying that other safeguards should be viewed as having little or absolutely no ability to put right the perceived prejudice caused by the absence of legal representation at the pre-trial investigation stage.
The changes in the Strasbourg jurisprudence begun by Salduz are by no means sudden or unexpected. They constitute a development of the findings of the Council of Europe's European Committee for the Prevention of Torture ("CPT"), reflecting the fact that art.6 is closely related to a number of other Convention provisions.29 The CPT indeed urged states to give force to a "trinity of rights"30 for police detainees in their domestic law, recognising that an individual is at his most vulnerable point directly after being taken into police custody. The right of confidential access to a lawyer during detention is one of the three constituent elements of this "trinity", which forms "the core of the CPT's strategy for protecting detainees against ill-treatment during police detention"31.
Similarly, the problems of investigating allegations of ill-treatment when a detainee is deprived of contact with the outside world are well-documented. The Court has held that: "[A]llegations of torture in police custody are extremely difficult for the victim to substantiate if he or she has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence"32.
Accordingly, the current Scots law would appear to be blunt, inert and incapable of affording proper protection to individuals' art.6 rights. The Scots case of Cadder (Appellant) v Her Majesty's Advocate (Respondent)33 was due to be heard by a bench of seven judges in the new Supreme Court on the May 24, 2010 and has great potential to alter the Scots law position. It may well herald a re-packaging of a number of aspects of the Scottish criminal justice system, including legislative reform. A change is necessary if Scotland wishes to avoid a situation where her police routinely operate in violation of the European Convention on Human Rights. The Convention is a living instrument. Scots criminal law and procedure must not become a stagnant pool.
References
1 Criminal Procedure (Scotland) Act 1995 s.14(2).
2 Ibid. s.14(6) and s.14(9).
3 Ibid. s.15(1).
4 Brown v Stott, 2001 S.C. (P.C.) 43, per Lord Hope of Craig-head at p.73.
5 App. No.36391/02 (November 27,2008), s.55
6 App. No.15963/90, Judgment of October 23, 1995, Grodinger v Austria, s.36; See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, s.5.21
7 App. No.6903/75, Judgment of February 27,1980, Deweer v Belgium, s.46; See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, s.5.22
8 App. No.6903/75, Judgment of February 17,1980, Deweer v Belgium s.56; See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, s.5.03.
9 App. No.10862/84, Judgment of July 12, 1988, Schenk v Switzerland.
10 Including the pre-trial investigation stage (Application No. 28135/95, Judgment of June 6,2000, Magee v United Kingdom, s.41).
11 Jalloh v Germany [GQ, No.54810/00, EHRR 2006-DC]
12 2009 G.WD. 24-384 . 132000J.C.271HCJ24.
14 [20091 HCJAC 97].
15 [2003] 1 A.C. 837, per Lord Bingham of Cornhill at s.18 (cited at s.29 of McLean).
16 McLean, s.29 (citing R v Spear [2003] 1 AC. 734, per Lord Bingham at s.12; Doherty v Birmingham City Council [2009] 1 A.C. 367 , per Lord Scott of Foscote at s.88).
17 McLean, s.24.
18 Under the Criminal Procedure (Scotland) Act 1887.
19 App. No. 7025/04, Judgment of September 24, 009
20 Pischalnikov, s.69.
21 Ibid, s.69.
22 Ibid, s.80.
23 Ibid, s.59.
24 Salduz, s.55.
25 Pischalnikov, s.84
26 Ibid, s.90.
27 Salduz s.59.
28 Pischalnikov, s.79.
29 See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, s.5.05.
30 12th General Report, CPT/Inf (2002) 15, s.40.
31 Jim Murdoch, The Treatment of Prisoners: European Standards, Council of Europe Publishing, May 2006, p.161.
32 App. No.34445/04, Judgment of January 11, 2007, Mammadov (Jalaloglu) v Azerbaijan, s.74; See Eric Svanidze, Effective Investigation of Hl-Treatment Guidelines on European Standards, Council of Europe Publishing, 2009.
33 Brief details of which may be found at: http: / / www.supreme-court.gov.uk/current-cases / CCCaseDetails / case_2010_0022.html [Accessed May 25, 2010].