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It was not until about two hours later, at 1428 hrs, that a message was left with the solicitors secretary to advise him of the arrest. FAC |
Birnie also asked that his mother be told of his arrest, but this was not possible as she was apparently not available to answer the telephone. FAC |
Birnie then told the police that he wished to make a further statement, which he did at about 1345 hrs on 14 August 2009 to two police officers who had not had any prior involvement in the inquiry. FAC |
Before he made his statement, which it is agreed was unsolicited, he was asked whether he wished to consult a solicitor before making it. FAC |
He replied that he did not. FAC |
He was asked whether he wished a solicitor to be present while he was making it. FAC |
He again said that he did not. FAC |
He was then cautioned and asked whether he understood the caution, to which he replied Yeah. FAC |
He then said: I want to admit poking [AR]. FAC |
She asked me to do it and we did give each other love bites. FAC |
He was asked to say what he meant by poking, to which he replied that meant putting your fingers in her vagina. FAC |
He then said: I never locked her in. FAC |
I never locked her in her house. FAC |
I asked her several times if she wanted to leave but she says No. I didnt threaten her in any way. FAC |
It is plain from this narrative that Birnie was offered rights of access to a solicitor before he made his statement and he was also asked whether he wished to have a solicitor present while he was making it. Ratio |
He expressly declined both of these offers. Ratio |
The question is whether, on these facts, his statement was admissible. Ratio |
The Crown submits that it was. Ratio |
This is because the statement was severable from the prior police interview on two grounds: first, it was preceded by a valid waiver of the right of access to a solicitor and, second, because it was voluntary and not elicited by police questioning. Ratio |
The Appeal Court did not address its reasoning to these points, although it had been addressed on them in the course of the hearing of the appeal. Ratio |
The Lord Justice Clerk said in para 32 of his opinion that he accepted that the rights of a detainee or of an accused person under article 6 were capable of being waived, but that the argument for the Crown failed in the case of each of the three respondents. Ratio |
This was because the law at the time did not allow the accused to have access to a lawyer at the time of the pre-trial procedure and because the consent to be interviewed in each case was not informed by legal advice. Ratio |
He dealt more fully with the latter ground for rejecting the Crowns argument in para 34, where he said: Furthermore, a valid waiver can proceed only on the basis of an informed decision. Ratio |
Since the right allegedly waived was that of access to legal advice, I cannot see how any of the appellants could waive that right when, ex hypothesi, he had not reason to think that he had any such right and had not had access to legal advice on the point Ratio |
The agreed facts show that Birnie was told that he had this right before he made his unsolicited statement following his police interview. Ratio |
As for the objection that he did not have access to legal advice on the point before he declined the offer of access to a solicitor, I would hold that the answer to it is that there is no absolute rule that the accused must have been given legal advice on question whether or not he should exercise his right of access t... |
Lord Kerr says that it is an indispensible prerequisite that there must be some means of ascertaining the reason why the accused did not avail himself of this right: para 53, below. Ratio |
But it was not suggested at any time in the course of the argument that an absolute rule to that effect is to be found in the jurisprudence of the Strasbourg court nor do I find this in Lord Kerrs analysis of the authorities in McGowan. Ratio |
This point is of crucial importance to the proper exercise of the jurisdiction that has been given to this court by the Scotland Act. Ratio |
The only question for us is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. Ratio |
That is the limit of our jurisdiction. Ratio |
A rule of the kind that Lord Kerr has suggested might perhaps be recognised at common law. Ratio |
But it is not for us to say how the law and practice respecting crimes should be developed by the common law in Scotland. Ratio |
That must be left to the High Court of Justiciary, whose decisions on all matters relating to the domestic criminal law of Scotland are final. Ratio |
The fact that the accused did not receive legal advice on the point and was not asked why he did not want to speak to a lawyer need not be left out of account altogether for the purposes of article 6. Ratio |
These are circumstances which can be taken into account in the assessment as to whether he understood the right that was being waived. Ratio |
But they are no more than that. Ratio |
I do not think that the Strasbourg jurisprudence requires us to hold that it would necessarily be incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on evidence of answers given by a suspect during a police interview just because it was not ascertained why he did not wa... |
A descent to that level of detail in the laying down of incontrovertible rules is contrary to the approach that the court itself has adopted. Ratio |
The President of the court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March 2011 that the Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State: [2011] EHRLR 505, 51... |
The Supreme Court should, I believe, be no less careful in the way that it deals with Scottish criminal law and procedure. Ratio |
There remains the question whether the statement is properly to be regarded as severable from the police interview so that it can be held to be voluntary and not elicited by the previous police questioning. Ratio |
It is not in doubt that an unsolicited admission which is truly spontaneous and voluntary is admissible. Ratio |
In Cadder Lord Rodger observed that it is quite common for those who have been arrested to decide to make admissions to the police and not to exercise their right to obtain legal advice before doing so: 2010 SLT 1125, para 96. Ratio |
A person can confess if he is willing to do so, and his confession will be admissible if it is truly voluntary. Ratio |
The common law test as to what may be regarded as voluntary was described in Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde. Ratio |
He said that, to be voluntary, the 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. Ratio |
The crucial question then is whether this statement freely given? Or was it the result of some kind of pressure or inducement by the police? Ratio |
We were not referred to any jurisprudence of the Strasbourg court on this precise point. PRE |
But in Oregon v Elstad 470 US 298 (1985), pp 317-318 Justice OConnor, giving the opinion of the US Supreme Court, observed that some courts had applied that courts precedents, including Miranda v State of Arizona 384 US 436 (1966), relating to confessions obtained under coercive circumstances to situations involving wh... |
She went on to add these words: Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspects initial inculpatory statement, though technically in violation of Miranda, was voluntary. PRE |
The relevant inquiry is whether, in fact, the second statement was also voluntarily made. PRE |
In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial confession without having been given a Miranda warning, a majority of the court held that his second statement after a Miranda warning was inadmissible. PRE |
They rejected the minoritys criticism that this was inconsistent with Elstad, on the ground that the failure to give the warning in Elstad was a good-faith mistake which was open to correction by careful warnings before systemic questioning in that particular case took place: p 615. PRE |
In R v Cherie McGovern (1990) 92 Cr App R 228 the Court of Appeal held that a second interview, where a solicitor was present, was tainted by the fact that at her first interview which took place the previous day the appellant had been denied access to a solicitor. PRE |
There were special features in that case. PRE |
The appellant, who was aged 19, pregnant and of limited intelligence, was said to have been particularly vulnerable. PRE |
Farquharson LJ said at p 234 that if the solicitor who was present at the second interview had known that the appellant had been wrongfully denied access to a solicitor at the first interview he would in all probability not have allowed the second interview to take place. PRE |
Such authorities as there are on this issue suggest that each case must be examined carefully on its own facts. Ratio |
There are signs in this case, as in R v Cherie McGovern, that Birnie was particularly vulnerable when he made what I have referred to as his statement. Ratio |
It was unsolicited. Ratio |
He was no longer being interviewed. Ratio |
But the interval between his making it and the end of the police interview was very short. Ratio |
He had just been told that he was to be detained over the weekend, and he had been crying. Ratio |
It is at least questionable whether he would have made this statement if he had said that he wished to consult a solicitor and he had then received the legal advice to which he was entitled before making it. Ratio |
This is not a question that needs to be answered in every case. Ratio |
But in the circumstances of this case it is not one that can be left out of account in considering whether there was a breach of the right to a fair trial. Ratio |
I think that it is plain that there is room for argument as to whether the statement that Birnie made was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. Ratio |
Lord Kerr says that on the available evidence the only possible conclusion is that that it has not been established that Birnies decision not to consult a solicitor was an effective waiver of his right to legal consultation: see para 57, below. Ratio |
But here again the limits of our jurisdiction must be respected. Ratio |
It is not our function to act as a second court of appeal on matters that depend on the application of the domestic law. Ratio |
The question whether there has been a breach of the fundamental Convention right to a fair trial is within our jurisdiction. Ratio |
But, as I would hold that it was not necessarily incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord Advocate to lead and rely on this evidence, I consider that the question of fairness for the purposes of article 6(1) must be examined in the light of all the facts and circumstances. Ratio |
This is pre-eminently a matter for determination in the first instance by the High Court of Justicary. Ratio |
As the Appeal Court has not yet addressed itself to this issue, I would remit it to that court for determination as part of the continued hearing of Birnies appeal. Ratio |
Conclusion Ratio |
I would dismiss the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. RPC |
I would dismiss its appeals on the issue as to waiver in regard to the police interviews in all three cases. RPC |
I would allow its appeal on the question whether it was incompatible with Birnies right to a fair trial under article 6 of the Convention for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remit that matter for determination by the High Court of Justiciary. ... |
I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. RPC |
I am in full agreement with the judgments of Lord Hope and Lord Hamilton on these appeals and would dispose of them as Lord Hope proposes. RPC |
I agree with Lord Hope as to the disposal of all three of these appeals and adopt his narrative of the pertinent circumstances. Ratio |
I also adopt his reasoning in relation to Birnies unsolicited statement. Ratio |
I add a few words of my own on the issue of interpretation of section 100(3B). Ratio |
The question is whether an appeal against a conviction, obtained on indictment or on complaint, is proceedings brought by virtue of [the Scotland Act] against [the Lord Advocate] within the meaning of subsection (3A) of the Scotland Act (as amended by the Convention Rights Proceedings (Amendment) (Scotland) Act 2009). ... |
The scope of subsection (3A) must ultimately be determined by the statutory language used. Ratio |
But it is necessary to have regard to that language in the context of the legislation in which it appears and, in my view, in the context also of such other legitimately available material as may assist in the exercise of interpretation. Ratio |
This may involve identifying the mischief at which the enactment was directed. Ratio |
In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is stated: These presumptions [that Parliament intended to suppress the mischief and that it did not intend to apply coercive measures going wider than was necessary to remedy the mischief in question] as to Parliaments intention may help in construing an ... |
The importance of the mischief goes further than this, however. Ratio |
We cannot be sure whether there is real doubt or not unless we have the mischief in mind. Ratio |
This is one function of the informed interpretation rule. Ratio |
In the consideration of opposing constructions of an enactment in relation to a particular factual situation, we may find that bringing the mischief into account helps to decide whether the enactment is intended to be given a wider or narrower construction. Ratio |
The first thing to notice is that the amendment made by the 2009 Act is an amendment to section 100 itself by adding two subsections to it. Ratio |
That suggests that the intendment of the legislature was to make an improvement, as it saw it, to the effect of section 100 as originally enacted. Ratio |
The nature of that intended improvement is not difficult to find. Ratio |
As Lord Rodger himself said in Cadder v HM Advocate 2011 SC (UKSC) 13, at para 105: In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of Lords held that the time limit in section 7(5) of the Human Rights Act 1998 did not apply to proceedings in relation to Convention rights brought by reference to the Scot... |
It followed that, subject to any common law limitations or any specific statutory time limit, such proceedings could be brought at any time. Ratio |
The Scottish Parliament eventually responded to that decision by passing the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, which amended section 100 of the Scotland Act so as to introduce a one-year time-limit like the one in section 7(5) of the Human Rights Act. Ratio |
Somerville was a civil case in which the House of Lords relied significantly upon section 100 of the Scotland Act (as originally enacted) as well as on the other provisions of that statute. Ratio |
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