Appeal - Appeal against conviction - Respondent appealing against conviction

Jude v Her Majesty's Advocate; Hodgson v Her Majesty's Advocate; Birnie v Her Majesty's Advocate: Supreme Court (Lords Hope, Brown, Kerr, Dyson and Hamilton): 23 November 2011

Section 100(3B) of the Scotland Act 1998 (as amended), provides: 'Proceedings to which this subsection applies must be brought before the end of - (a) the period of one year beginning with the date on which the act complained of took place, or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question'.

Three separate appeals had been heard together as they had raised similar issues. Each of the respondents, J, H and B, had been detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (the 1995 act). Their detentions took place prior to the decision in Cadder v HM Advocate (2010 S.C.C.R. 951) (Cadder).

As was the practice at that time, they did not have access to legal advice either before or during their police interviews. In the course of their interviews they said things in reply to questions put to them by the police on which the Crown later relied at their trials. They were convicted and sentenced to various periods of imprisonment. They then appealed against those convictions. The first respondent, J, went to trial in the High Court of Justiciary at Aberdeen on an indictment which libelled one charge of breach of the peace, one charge of lewd and libidinous conduct, three charges of indecent assault and two charges of assault with intent to rape. He was convicted of one charge of indecent assault and of both charges of assault with intent to rape. He lodged a notice of his intention to appeal against his conviction.

His appeal was deemed to have been abandoned because his note of appeal had not been lodged within the period referred to in section 110(1)(a) of the 1995 act. He subsequently lodged an application for extension of time under section 111(2) of that act along with a note of appeal. His application for extension of time was granted and his note of appeal was received on the same date. It was common ground that the time bar which would otherwise have applied under section 110 of the 1995 act had been removed when the Appeal Court granted J’s application for an extension of time. B went to trial in the Sheriff Court at Aberdeen charged with abduction and assault with intent to rape, a breach of the peace and a contravention of section 127(1)(a) of the Communications Act 2003 by sending sexually explicit messages to a female complainer.

He had not been told that he had a right of access to legal advice prior to or during his police interview as it was not the practice at that time for that to be offered to persons detained under section 14 of the 1995 act. After his first interview, B was asked if he wished a solicitor to be told of his arrest. He gave the name of a solicitor who was contacted two hours later.

Before the solicitor had been contacted, B informed the police that he wished to make a further statement. He was asked if he wished to consult a solicitor first, to which he replied that he did not. He also declined the offer to have a solicitor present while he made his statement. B made certain admissions during his statement. At trial, B pled guilty to the statutory offence, and his plea of not guilty to the charge of breach of the peace was accepted at that stage. The Crown led evidence at his trial of answers he gave to the police while he was being questioned without access to a solicitor.

It also led evidence of the unsolicited statement which he made to the police following that interview. The jury found him guilty of the first charge under deletion of various averments including that of intent to rape. The respondents' appeals were still pending when the judgment in Cadder was delivered. Among other grounds of appeal in the High Court of Justiciary the respondents advanced submissions which raised a devolution issue.

That was that the leading of evidence of statements which they had made during their police interviews had been a breach of their rights under articles 6(3)(c) and 6(1) of the European Convention on Human Rights and that, in terms of section 57(2) of the Scotland Act 1998 (the 1998 act), the Lord Advocate had had no power to lead that evidence. They referred to the decision in Cadder in support. In the case of B it was further submitted that the reliance by the Crown upon his admissions in those circumstances had deprived him of a fair trial, to which he had been entitled under article 6(1) of the Convention and at common law. The Crown’s response to those submissions was that, for various reasons, the principle that had been established in Cadder did not apply in the instant cases.

The High Court of Justiciary dealt with that response as a preliminary issue, and it was referred to a court of five judges. The Appeal Court repelled the Crown’s objections and continued the appeals for hearing on the remaining grounds of appeal. It rejected, inter alia, the Crown's contention that J's appeal had been out of time because the act that had been relied upon had taken place more than one year before the lodging of his note of appeal had been rejected.

It held that section 100(3B) of the 1998 act (as amended) applied only to claims made in civil proceedings and then only when they were brought by virtue of the 1998 act and that that had not been so in J's case as his appeal had been brought under the 1995 act. The Crown was given leave to appeal.

The issues for determination were: (i) whether the time bar in section 100(3B) of the 1998 act had applied to J's appeal under the 1995 act; and (ii) whether B had waived his right of access to a lawyer when he made his unsolicited statement following his police interview and whether the reliance by the Crown upon his admissions in those circumstances had deprived him of the right to a fair trial in accordance with article 6(1) of the Convention. Consideration was given to section 7 of the Human Rights Act 1998 (the HRA).

The court ruled (Lord Kerr dissenting in part): (1) Section 100(3B) of the 1998 act referred to proceedings brought 'by virtue of this act' against the Scottish Ministers or a member of the Scottish Executive. A criminal appeal in which it was said that the leading and relying on evidence by the Lord Advocate had been contrary to the appellant’s Convention rights, and that in terms of section 57(2) of the 1998 act he had had no power to lead that evidence, fell plainly into the category of a proceeding that was 'by virtue of' the 1998 act.

It was the 1998 act which provided the basis for the appeal. An appeal which relied upon an alleged infringement of a Convention right was one brought by virtue of the 1998 act. The fact that the procedure under which the complaint had been made was provided by the 1995 act was neither here nor there so far as that point was concerned.

Section 100(3B) of the 1998 act referred to 'any proceedings brought' by virtue of that act. It would not be a misuse of language to use the word 'brought' in relation to proceedings which took the form of an appeal under the 1995 act. Section 100(1) of the 1998 act made the same distinction as that which was to be found in section 7(1) of the HRA between bringing proceedings in a court or tribunal on the ground that an act was incompatible with the Convention rights (section 100(1)(a)) and relying on any of the Convention rights 'in any such proceedings' (section 100(1)(b)).

Section 100(1)(a) of the 1998 Act did not reproduce exactly the wording of section 7(1)(a) of the HRA, as it did not refer to 'the appropriate court or tribunal' which section 7(2) explained as meaning such court or tribunal as might be determined. The words 'in any such proceedings' did not reproduce exactly the wording of s 7(1)(b) of the HRA either, as the equivalent phrase in that act was 'in any legal proceedings'. However, they had the same effect. Section 7(5) of the HRA did not impose any time bar on proceedings of the kind referred to in section 7(1)(b). Section 100(3A) of the 1998 act applied only to proceedings under section 100(1)(a), consequently, the time bar in section 100(3B) did not apply to the kind of proceedings referred to in section 100(1)(b).

Proceedings of the kind referred to in section 100(1)(b) of the 1998 act were proceedings that had been brought by someone other than the person who maintained that the act in question had been incompatible with the Convention rights. An appeal against conviction or sentence remained part of the prosecution process that had been brought in the public interest by the Lord Advocate (see [13]-[17], [35]-[36], [42], [49], [51] of the judgment).

In the instant case, the time bar in section 100(3B) of the 1998 act had had no bearing upon J's appeal under the 1995 act. It would have been very odd, where the High Court had already granted an extension under section 111(2) of the 1995 act, that it would then have been open to the Crown to invoke another time limit under another section in a different act (see [18], [35]-[37], [51] of the judgment). The Crown's appeal on the first issue would be dismissed (see [34]-[37], [51] of the judgment). Somerville v Scottish Ministers (HM A-G for Scotland intervening) [2007] UKHL 44 considered; HM Advocate v Cadder 30 BHRC 257 considered.

(2) It was established law that there was no absolute rule that an accused had to have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he could be held to have waived it. It was not an indispensible prerequisite that there had to have been some means of ascertaining the reason why an accused did not avail himself of the right to legal advice.

The fact that the accused had not received legal advice on the point and had not been asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6 of the Convention. They were circumstances which could be taken into account in the assessment as to whether he understood the right that was being waived, but they were no more than that (see [28]-[29], [35]-[37] of the judgment).

B had been told that he had had a right to a solicitor before he had made his unsolicited statement following his police interview. There was room for argument as to whether the statement that B had made had been truly voluntary and whether, taking all the circumstances into account, it had been fair to admit the evidence.

However, it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to have led and relied upon that evidence and the question of fairness for the purposes of article 6(1) had to be examined in the light of all the facts and circumstances (see [28], [33], [35]-[37] of the judgment). The Crown's appeal on the issue of waiver would be dismissed in all three cases.

However, its appeal on the issue as to whether leading B's admissions in evidence had been compatible with B's rights under article 6 of the Convention would be allowed. That matter would be remitted to the Appeal Court for determination as part of the continued hearing of B's appeal (see [33], [35]-[37] of the judgment). McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 applied.

Per curiam: The President of the [European Court of Human Rights], Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State. The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure (per Lord Hope at [29] of the judgment). Decision of Appeal Court, High Court of Justiciary 2011 Scot (D) 6/6 Affirmed In Part.

Christopher Shead, Moira Mackenzie and Andrew Mason (instructed by Drummond Miller) for the respondents; Joanna Cherry QC, P Jonathan Brodie QC, Kenneth Campbell QC and Douglas Fairley (instructed by the Appeals Unit, Crown Office) for HM Advocate.