(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what point the duty to allow access to a solicitor arose, and what use might be made of answers given to questions before detention.
Held: (Majority 4-1) In two cases it remained compatible for the evidence obtained before arrest to be led, but in G it had been incompatible.
The case of Salduz and others had not taken such rights to the point now asserted, and it would be wrong to extend it. The line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed, and ‘It would be to go further than Strasbourg has gone to hold that a person has, as a rule, a Convention right of access to a lawyer before answering any questions put to him in the course of a police search. It is not because there is a rule to this effect that I would answer the question in the affirmative. Rather it is because it is plain from the particular circumstances of the case that G was, in effect, a detainee when he was being questioned by the police. In the absence of such indications of coercion the question, as in the other cases, will be whether, taking all the circumstances into account, it would be fair to admit the whole or any part of the evidence.’
Lord Kerr, dissenting, found the use made of the evidence obtained by questioning before legal held had been offered was incompatible with the suspect’s rights. It was not open to the courts of this country to restrict a right apparently given by the Convention only because Strasbourg had not yet spoken. Choosing the moment of being taken into custody as the first occasion on which legal representation becomes necessary is arbitrary and illogical. Salduz indicates that the need to have a lawyer is not determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made.
Lord Clarke said ‘the right to have access to a lawyer emerges at the point when the suspect is deprived of his liberty of movement, to any material extent, by the investigating authorities and is to be questioned by them. It follows that I am in agreement with Lord Hope that the Strasbourg jurisprudence, to date, does not support the defence contention in these references that the ECtHR has gone as far as to say that the right emerges as soon as a suspect is to be questioned by the police in whatever circumstances.’
Judges:
Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Matthew Clarke
Citations:
[2011] UKSC 43, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435
Links:
Bailii, Bailii Summary, SC Summary, SC
Statutes:
Criminal Procedure (Scotland) Act 1995 14 15A, European Convention on Human Rights 6(1) 6(3)(c), Police and Criminal Evidence Act 1984 76(2) 82(1), Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010
Jurisdiction:
Scotland
Citing:
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Cited – Dayanan v Turkey ECHR 13-Oct-2009
The claimant challenged his conviction after he had not been given access to a lawyer whilst detained and after, during the appeal process, prosecution material was submitted to the court which was not shown to him. Nevertheless he had remained . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Murray v The United Kingdom ECHR 8-Feb-1996
The applicant had been denied legal advice for 48 hours after he had been taken into custody.
Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Magee v United Kingdom ECHR 6-Jun-2000
The denial of access to a solicitor for a suspect before interrogation was a breach of the right to a fair hearing. The breach was so fundamental as to irretrievably prejudice the rights of a defendant. The article might be expressed to refer to . .
Cited – Brennan v The United Kingdom ECHR 16-Oct-2001
The applicant had complained that, after his arrest he had been refused adequate access to a lawyer. He had not been allowed to see his solicitor for two days, and only then in the presence of a police officer. No inferences had been drawn from his . .
Cited – Huseyin Habip Taskin v Turkey ECHR 1-Feb-2011
The applicant complained that he had been denied the assistance of a lawyer during his police custody and that his police statement which had been taken in the absence of a lawyer had been used in his conviction by the trial court. . .
Cited – Hakan Duman v Turkey ECHR 23-Mar-2010
The claimant said he had not been given appropriate access to a lawyer when in police custody.
Held: The use of statements obtained at the stage of the police inquiry and the judicial investigation is not inconsistent with article 6(1), . .
Cited – Salduz v Turkey ECHR 27-Nov-2008
(Grand Chamber) The applicant had been taken into custody before he was interrogated during his detention by police officers of the anti-terrorism branch of the Izmir Security Directorate.
Held: There had been a violation of art 6(3)(c) of the . .
Cited – Arzu v Turkey ECHR 15-Sep-2009
The applicant, who was arrested and placed in custody, complained that he had been denied access to a lawyer during the initial stages of the criminal proceedings against him.
Held: The court in Salduz had considered the grievance of a lack of . .
Cited – Sharkunov and Mezentsev v Russia ECHR 10-Jun-2010
The court was asked as to the lack of legal assistance while in police custody and the use at the trial of incriminating statements that had been made at that stage.
Held: The court repeated the proposition that was first stated in Salduz, . .
Cited – Imbrioscia v Switzerland ECHR 24-Nov-1993
The applicant had been questioned several times without access to a lawyer while he was in police custody.
Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Eckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
Cited – JB v Switzerland ECHR 3-May-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention . .
Cited – Pishchalnikov v Russia ECHR 24-Sep-2009
(First Section) The applicant was interrogated while he was under arrest in police custody. He asked for the assistance of a lawyer during his interrogation, but this was disregarded by the investigator who proceeded to question him. It was argued . .
Cited – Borotyuk v Ukraine ECHR 16-Dec-2010
(Fifth Section) The applicant complained, in particular, that his continued pre-trial detention had been unjustified and that he had not been legally represented in the early stages of the criminal proceedings.
Held: The court summarised the . .
Cited – Zaichenko v Russia ECHR 18-Feb-2010
(First Section) The claimant complaned that he had not been allowed access to a lawyer when being questioned by police when he was not under arrest. He had been stopped driving home from work and his car inspected by the police after reports of . .
Cited – Galstyan v Armenia ECHR 15-Nov-2007
The claimant had been was arrested on his way home from a protest rally. He was made aware of his rights and expressly declined a lawyer.
Held: As it was his own choice not to have a lawyer, the authorities could not be held responsible for . .
Cited – Miranda v Arizona 10-Oct-1966
(United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure . .
Cited – Abdurahman v The United Kingdom ECHR 17-Sep-2010
The applicant was questioned by the police as a witness in connection with the attempt to detonate four bombs at separate points in the London public transport system two weeks after the bombings that took place on 7 July 2005. He had been . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – Regina v Grant 17-Jul-2009
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Arbitrary detention – Right to counsel – Encounter between accused and police going from general neighbourhood policing to situation where . .
Cited – Shabelnik v Ukraine ECHR 19-Feb-2009
A suspect’s position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: ‘The manner in which article 6(1) and (3)(c) is to be applied during the preliminary . .
Cited – Law v McNicol 1965
. .
Cited – Regina v Samuel CA 1988
The defendant had been arrested on suspicion of armed robbery. He asked for a solicitor, but one was refused under section 58 of the 1984 Act. He appealed against his conviction saying that he should have been allowed access to a solicitor.
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Brusco v France ECHR 14-Oct-2010
ECJ The applicant, suspected of involvement in an assault on a man by two hooded individuals in the underground car park of a Parisian residential block, was placed in custody in the context of a request for . .
Cited – Panovits v Cyprus ECHR 11-Dec-2008
The Court was asked as to the questioning of a child when the child had gone to the police station with his father, as requested by the police, and was thereafter arrested. The applicant complained, in particular, about the fairness of criminal . .
Cited – JDB v North Carolina 16-Jun-2011
(United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor. . .
Cited by:
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – McGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Cited – Gordon v Scottish Criminal Cases Review Commission (Scotland) SC 22-Mar-2017
The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice, Constitutional
Updated: 14 August 2022; Ref: scu.444962