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 evidence may not infringe the defendant’s human rights. However, there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c). It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. It is another if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence in question. The question whether such evidence should be admitted has to be tested by considering whether the accused’s right to a fair trial would be violated by the leading of the evidence.

Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Matthew Clarke
[2011] UKSC 44, 2012 SC (UKSC) 108
Bailii, Bailii Summary
European Convention on Human Rights 6(3)
CitedSalduz 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 . .
CitedCadder 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 . .
CitedGafgen v Germany ECHR 1-Jun-2010
(Grand Chamber) The claimant said that police treatment during his interview had amounted to torture.
Held: The Salduz principles were not restricted to the failure to provide access to a lawyer during interview. There is no clear consensus . .
CitedLawrie v Muir HCJ 23-Nov-1949
The prosecution case was said to have been based on evidence acquired during an unlawful search of the defendant’s premises.
Held: An irregularity in the method by which evidence has been obtained does not necessarily make that evidence . .
CitedMurray v United States 27-Jun-1988
USSC While surveilling petitioner Murray and others suspected of illegal drug activities, federal agents observed both petitioners driving vehicles into, and later out of, a warehouse, and, upon petitioners’ . .
CitedAmbrose 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 . .
CitedThomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) 29-Mar-1990
SCC (Supreme Court of Canada) Constitutional law — Charter of Rights — Fundamental justice – Self-incrimination — Right to remain silent – Derivative evidence — Combines investigation — Corporation suspected . .
CitedHM Advocate v McGuigan HCJ 1936
An irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible. . .
CitedChalmers v HM Advocate HCJ 1954
Where a defendant failed to prevent a statement being admitted in evidence, and sought to be able to challenge it again before the jury, this was a situation where logic must yield, since the jury cannot be asked to accept as an item of evidence a . .
CitedFraser 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 . .
CitedSchenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
CitedSaunders 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 . .
CitedS v Mthembu 10-Apr-2008
Saflii (South Africa: Supreme Court of Appeal) The evidence of an accomplice extracted through torture, (including real evidence derived from it), is inadmissible, even where the accomplice testifies years after . .
CitedJalloh 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 . .
CitedStott (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 . .
CitedRegina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
Cited by:
CitedAmbrose 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 . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights

Updated: 02 November 2021; Ref: scu.444963