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 section must be read down to make it compliant with the human rights of a suspect. Unless there were particularly compelling reasons for the denial of such access, evidence obtained in such an interview should not be admitted at trial.
The Crown’s reliance on a suspect’s admissions without legal advice when detained under section 14 of the 1995 Act breached his right to a fair trial, having regard to the decision in Salduz because the leading and relying on the evidence of the appellant’s interview by the police was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights.
Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Mance, Lord Kerr, Sir John Dyson, SCJ
[2010] UKSC 43, UKSC 2010/0022, [2010] WLR(D) 268, 2010 SLT 1125, [2010] 1 WLR 2601
Bailii, SC, SC Summary, Bailii Summary
Criminal Procedure (Scotland) Act 1995 14, European Convention on Human Rights 6
Scotland
Citing:
Cited – McLean v HM Advocate HCJ 22-Oct-2009
. .
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 – Paton v Procurator Fiscal, Alloa; Paton v Ritchie HCJ 24-Nov-1999
. .
Cited – Gourlay Or Dickson v Her Majesty’s Advocate HCJ 10-May-2001
. .
Cited – Windsor v United Kingdom ECHR 14-Dec-1988
The claimant complained that whilst arrested, he had been denied access to a lawyer. . .
Cited – Jalloh v Germany ECHR 3-Jun-2010
The claimant complained that the police had administered an emetic to recover drugs evidence he was said to have swallowed. . .
Cited – Jalloh v Germany ECHR 11-Jul-2006
The applicant, after arrest, had been forced to regurgitate a bag of cocaine, there was a complaint that article 3 had been violated as well as article 6.
Held: Even evidence which may properly be described as ‘independent of the will of the . .
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 – Amutgan v Turkey ECHR 3-Feb-2009
. .
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 – A v The Governor of Arbour Hill Prison 10-Jul-2006
Supreme Court of Ireland
Murray CJ said: ‘[T]he retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position … No one has ever suggested that every time there is a judicial . .
Cited – Regina v Budimir and Another CACD 29-Jun-2010
The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had . .
Cited by:
Cited – Fraser v Her Majesty’s Advocate SC 25-May-2011
The defendant appealed against his conviction for murder, saying that the prosecution had failed to disclose certain matters.
Held: The appeal succeeded, the conviction was quashed and the case remitted to the Scottish courts to consider . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(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 . .
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 – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
coulson_NIQBD2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Cited – Jude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
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 – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
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.
Criminal Practice, Human Rights
Updated: 10 November 2021; Ref: scu.425546