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 Article 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/Article 6 rights to legal advice, and, without having received advice from a lawyer, had stated that he did not wish to exercise such rights (Lord Kerr dissenting). The requirement of article 6, even though it should be read sufficiently broadly to give effect to the suspect’s right to a fair trial, was not that a suspect in custody must in fact have taken legal advice. Comments in the Jude case which might be read to the contrary should be restated.
The court suggested improvements which might be made to practice to ensure that a detained person properly understood what was being offered, by requesting and recording reasons for declining legal assistence, and also as to confirming arrangements for selecting and paying for a solicitor where a detainee had any doubts.
Since the case came before the cort as a reference rather than an appeal, the right thing to do was to refer back the the second question to the Sheriff.
Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Hamilton
[2011] UKSC 54, UKSC 2011/0201, [2011] 1 WLR 3121, 2012 SLT 37, 2012 SCCR 109, 2012 SCL 85
Bailii Summary, Bailii, SC, SC Summary
Scotland Act 1998 57(2), European Convention on Human Rights
Scotland
Citing:
Cited – HM Advocate v Scottish Media Newspapers Ltd 2000
Lord Rodger of Earlsferry discussed the fetters place upon the Lord Advocate by the 1998 Act, saying that he simply has no power to move the court to grant any remedy which would be incompatible with the European Convention on Human Rights. . .
Cited – Jude and Others v Her Majesty’s Advocate HCJ 11-May-2011
. .
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 – 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 – 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 – Dyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
Cited – Oberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
Cited – Montgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Dyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
Cited – Jones v The United Kingdom ECHR 9-Sep-2003
The applicant had been absent and unrepresented throughout his trial. He complained of his conviction.
Held: Before a defendant could properly be said to have impliedly through his conduct waived his right it must be shown that he could . .
Cited – Sejdovic v Italy ECHR 10-Nov-2004
The claimant had been tried and convicted of manslaughter in his absence. The respondent said that he had waived his right to appear at trial by becoming untraceable.
Held: The claim succeeded: ‘The Court re-iterates that neither the letter . .
Cited – Colozza v Italy ECHR 12-Feb-1985
The defendant complained that he had been tried and convicted in his absence.
Held: The right to a fair trial had been breached: ‘the object and purpose of [article 6] taken as a whole show that a person ‘charged with a criminal offence’ is . .
Cited – Yoldas v Turkey – French Text ECHR 23-Feb-2010
Yoldas was charged with belonging to an illegal organisation. He had been informed of his rights by the public prosecutor and by the judge who placed him on remand. He signed a form saying that he had the right to appoint a legal representative who . .
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 – Sejdovic v Italy ECHR 10-Nov-2004
The claimant had been tried and convicted of manslaughter in his absence. The respondent said that he had waived his right to appear at trial by becoming untraceable.
Held: The claim succeeded: ‘The Court re-iterates that neither the letter . .
Cited – Kolu v Turkey ECHR 2-Aug-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection joined to merits rejected (six-month period); Violation of Art. 6-1+6-3-c and 6-3-d; Not necessary to examine Art. 6 for the remainder; Not . .
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 – 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 – Talat Tunc v Turkey ECHR 27-Mar-2007
The applicant did not ask for a lawyer when arrested and interviewed by the police.
Held: The court noted that he had in effect stated that he was not able to act freely because he was being threatened with ill-treatment. It was not possible . .
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 – 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 – Plonka v Poland ECHR 31-Mar-2009
The applicant signed a form acknowledging that she had been informed of her right to be assisted by a lawyer during her questioning by the police and the prosecution authorities.
Held: Her assertion in the form that she had been reminded of . .
Cited – Paskal v Ukraine ECHR 15-Sep-2011
The applicant, a serving policeman with a university degree in law was arrested on suspicion of robbery. He signed a procedural rights notification form and noted that he wished to appoint a lawyer whom he named as his advocate. He was then . .
Cited – Saman v Turkey ECHR 5-Apr-2011
The applicant, accused of being a member of an illegal organisation and faced a heavy penalty, had an insufficient knowledge of Turkish and was without the help of an interpreter.
Held: She could not reasonably have appreciated the . .
Cited – Bortnik v Ukraine ECHR 27-Jan-2011
. .
Cited – Sharkunov And Mezentsev v Russia ECHR 2-Jul-2009
. .
Cited – Lopata v Russia ECHR 13-Jul-2010
. .
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 – 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 – 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 by:
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 – 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.
Scotland, Police, Human Rights, Criminal Practice
Leading Case
Updated: 09 November 2021; Ref: scu.448488