Right to a fair trial - Right of access to a lawyer - Statement or admissions made to police without access to legal advice

Ambrose v Harris (Procurator Fiscal Oban) (Scotland) and other appeals: SC (Justices of the Supreme Court – Lords Hope (deputy president), Brown, Kerr, Dyson and Clarke): 6 October 2011

The Supreme Court held in its decision of Cadder v HM Advocate (Cadder) [2010] UKSC 43, 30 BHRC 257 that the Crown’s reliance on admissions made by an accused without legal advice when detained under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey [2008] 49 EHRR 421.

The evidence that was in question in Cadder had been obtained when the appellant was being questioned while in detention at a police station. The applicant in Salduz had also been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.

In the present case, the three accused persons, A, G and M, had been questioned by police before they had been detained at a police station. A was prosecuted on a road traffic offence. He had been questioned by police at the roadside after being cautioned. When he had been approached by the police, he was drunk and sitting in the car. G was prosecuted for drugs and firearm offences.

He had been asked a number of questions and he had given certain answers during a search of his flat by police officers. At that time he had not yet been formally arrested and or taken into police custody. There had been a significant curtailment of his freedom of action in that he had been detained and he had been handcuffed. M was charged with assault. He had made admissions to police officers under caution during a visit by them to his home.

In each of the three cases, the accused persons objected to the Crown’s reliance at trial on the statements made prior to their being taken into police custody and without their having had access to legal advice. In each case, the Appeal Court of Justiciary referred a question for the determination of the Supreme Court.

The question in A’s case was whether the act of the Lord Advocate, in leading and relying on evidence obtained in response to police questioning of A conducted under common law caution at the roadside and without A having had access to legal advice, was incompatible with the appellant’s rights under article 6(1) and (3)(c) of the convention. The question in M’s case was whether the act of the lord advocate in leading and relying on evidence obtained in response to police questioning of M, conducted under common law caution at his home address and without the accused having had access to legal advice, was incompatible with M’s rights under article 6(1) and 6(3)(c) of the convention.

The question in G’s case was whether it was incompatible with the panel’s convention rights for the lord advocate to lead evidence of his statements and answers made during the course of the search conducted under warrant granted in terms of section 23(3) of the Misuse of Drugs Act 1971 as recorded in the Search Production Schedule. Issues arose as to (i) whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applied only to questioning which took place when the person had been taken into police custody; and (ii) if the rule applied at some earlier stage, from what moment did it apply.

The court ruled: (1)(i) (Lord Kerr ­dissenting) a decision by the Supreme Court that there was a rule that a ­person who was suspected of an offence but who was not yet in ­custody had a right of access to a lawyer before being questioned by the police unless there were compelling reasons to restrict that right would have far-reaching consequences. There was no such rule in domestic law. The consequences of such a ­ruling would be profound. If Strasbourg had not yet spoken clearly enough on that issue, the wiser course had to be to wait until it had done so (see [15] of the judgment).

(ii) The fact that the incriminating statements were made without access to a lawyer did not of itself mean that the rights of the defence were irretrievably prejudiced. The correct starting point, when considering whether the person’s convention rights had been breached, was to identify the moment from which he was charged for the purposes of article 6(1). The test was whether the situation of the individual was substantially affected. His position would have been substantially affected as soon as the suspicion against him was being seriously investigated and the prosecution case compiled.

The moment at which the individual was no longer a potential witness but had become a suspect provided as good a guide as any as to when he should be taken to have been charged for the purposes of article 6(1).

Any questioning of an individual who had been detained in custody by persons who were referred to in the Strasbourg cases as representing the investigating authorities with the aim of extracting admissions on which proceedings could be founded would amount to interrogation for the purposes of the rule.

The same could be said of questioning that took place at the roadside or in the person’s home, depending on the circumstances. It was not necessary, if access to a lawyer was needed for the right to a fair trial to remain practical and effective, that the questioning should amount to an ‘interrogation’ in the formal sense. It needed not be a detailed and sustained course of questioning (see [62]-[65] of the judgment).

The Strasbourg court had not said that a person who had become a suspect and was not in custody had, as a rule, to have access to a lawyer while he is being questioned. The moment at which article 6 was engaged when the individual was questioned by the police required very sensitive handling if protection was to be given to the right not to incriminate oneself. The mere fact that the individual had been cautioned would not carry the necessary implication. But, when the surrounding circumstances or the actions that followed immediately afterwards were taken into account, it might well do so (see [63]-[64] of the judgment).

The answer to the question in A’s case was in the negative. Applying the test outlined, A had been charged for the purposes of article 6 when he was cautioned and the police officer had had reason to think that the second and third questions were likely to elicit an incriminating response from him. The context in A’s case was that, when he was approached by the police, he was drunk and sitting in the car. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket.

A was not entitled to a finding that that evidence was inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to that form of questioning at the roadside. That left open the question whether taking all the circumstances into account it was fair to admit the whole or any part of this evidence. There might still be room for argument on that point. According, the decision as to how that question should be answered would be left to the Appeal Court (see [67]-[68] of the judgment).

(2) M had been charged for the purposes of article 6 when he was cautioned by the police officer at his home address. Although there had not been enough information at that stage to detain him as a suspect under section 14 of the 1995 act, his actions had been sufficient to carry the implication that the purpose of his visit was to establish whether M was in that category.

The question would also be in the negative, as it would be to go further than Strasbourg had gone to hold that the accused was entitled to a ruling that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being asked these preliminary questions in his own home with a view to determining what further steps should be taken to deal with him in connection with the offence. As in A’s case, that left open the question whether, taking all the circumstances into account, it would be fair to admit the whole or any part of this evidence. That would be left to the sheriff (see [70] of the judgment).

(3) The question in G’s case would be answered in the affirmative. The circumstances were sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice about the items to be found to be inadmissible. The feature of G’s case which distinguished it from the other two was that, although G had not yet been formally arrested and or taken into police custody, there was a significant curtailment of his freedom of action. He had been detained and he had been handcuffed. He was, in effect, in police custody from that moment onwards (see [72] of the judgment).

John Dominic Scott and Andrew Mason (instructed by DM MacKinnon) for A; Gordon Jackson QC and Claire Madison Mitchell (instructed by Paterson Bell) for G; Christopher Shead and Moira MacKenzie (instructed by G Keenan & Co) for M; Frank Mulholland QC, lord advocate, and Gordon Balfour (instructed by the Crown Agent, Crown Office) for the lord advocate.