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 the decision in Cadder.
Held: (Lord Kerr dissenting) The prosecutor’s appeals failed. No time bar applied under section 100 of the 1998 Act. Criminal appeals under section 57(2) were made by virtue of the 1998 Act. The legislation distinguished beween bringing proceedings on the basis of Convention rights, and relying on them ‘in any such proceedings.
In two cases the appeals failed, but the defendant Birnie had been offered and had declined legal assistance at the police station, and the appeal by HMA succeeded.
Lord Kerr dissentimng, said: ‘For a waiver to the right to legal assistance to be effective, there must be a knowing and intelligent decision to waive the right. I do not understand the majority in this case to suggest otherwise.’
Judges:
Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Hamilton
Citations:
[2011] UKSC 55, 2012 SCCR 88, 2012 SLT 75, 2011 GWD 38-779, 2012 SCL 130, UKSC 2011/0150
Links:
Bailii, Bailii Summary, SC, SC Summary
Statutes:
Criminal Procedure (Scotland) Act 1995 14 15, European Convention on Human Rights 6(3)(c) 6(1), Scotland Act 1998 57(2) 100(3B)
Jurisdiction:
Scotland
Citing:
Appeal from – Jude and Others v Her Majesty’s Advocate HCJ 11-May-2011
. .
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 – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
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 – Martin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Manuel v HM Advocate HCJ 25-Jun-1958
In order to be found to be voluntarily given, a suspect’s statement must have been freely given and not given in response to pressure or inducement and not elicited by questioning other than what is directed simply to elucidating what has been said. . .
Cited by:
Cited – Saunders v Regina CACD 26-Jun-2012
The defendant sought leave to appeal after a ruling that her refusal to take legal advice during police interview had been informed and voluntary. The interviewing officer had adopted a policy of always giving disclosure where the suspect was . .
Lists of cited by and citing cases may be incomplete.
Police, Human Rights, Criminal Evidence
Updated: 26 September 2022; Ref: scu.448487