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FOURTH
SECTION
DECISION
Application no.
19923/10
Ryan PATERSON
against the United Kingdom
The
European Court of Human Rights (Fourth Section), sitting on 22 May
2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
George
Nicolaou,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 29 March 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant Mr Ryan Paterson is a British national who was born in
1984. He is currently detained at HMP Peterhead. After lodging the
application himself, the applicant has subsequently been represented
before the Court by Mrs Rosemary Cameron, a lawyer practising in
Edinburgh with John Pryde & Co SSC.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On
12 March 2008 the applicant had sexual intercourse with a woman, W.
W. subsequently alleged that the applicant had raped her.
- The
applicant was interviewed by the police without the presence of a
lawyer. In the course of the taped interview he admitted having
sexual intercourse with W. but maintained that it had been
consensual.
- The
applicant was subsequently charged and tried for rape at the High
Court of Justiciary at Glasgow. At the trial, the prosecution
introduced the taped interview as evidence. On 12 May 2009, the
applicant was convicted by a majority verdict of the jury and
sentenced to five years’ imprisonment.
- The
applicant applied to the High Court of Justiciary sitting as a court
of criminal appeal (“the Appeal Court”), for leave to
appeal against conviction and sentence, inter alia on the
ground that it was incompatible with Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1 for the prosecution
to have introduced the police interview as evidence at trial.
- By
letter dated 19 November 2009 the applicant was informed that, on 19
November 2009, the single “sift” judge had refused leave
to appeal. The judge stated that the applicant’s grounds were
based on this Court’s judgment in Salduz v. Turkey [GC],
no. 36391/02, ECHR 2008. However, the Appeal Court’s judgment
in HM Advocate v. McLean [2009] HCJAC 97 (which declined to
apply Salduz to Scots law: see paragraphs 13-16 below) made
clear that these grounds were unarguable
- By
letter dated 3 December 2009 the applicant’s legal advisers
intimated their intention to have the refusal of leave to appeal
reviewed, and the case papers passed to the “second sift”
(review by a panel of three judges). On 15 December 2009 the
applicant was informed that the second sift judges had refused the
applicant’s appeal against the single sift judge’s
decision. They stated that the appeal against conviction was
unarguable for the reasons given in McLean. Furthermore, even
if the admission of the evidence regarding the interview was
erroneous, they did not think it arguable that it had resulted in a
miscarriage of justice, having regard to the content of the
interview.
- By
letter of 24 December 2009, the applicant’s legal advisers
wrote to the High Court of Justiciary stating that the court’s
decision of 15 December 2009 represented the determination of a
“devolution issue” in the case. (A devolution issue
is a dispute as to whether the Scottish authorities, including the
Lord Advocate as head of public prosecutions, have acted ultra
vires. This includes whether they have acted incompatibly with
their obligations under the Convention. A Scottish criminal case can
only be appealed to the Supreme Court if a devolution issue arises in
it). The letter of 24 December 2009 asked for a procedural
hearing to be arranged so that an application for leave to appeal to
the Supreme Court could be made.
- On 5 January 2010 the applicant was informed that the
application for a procedural hearing had been considered and refused
by the Criminal Appeals Administration Judge for the following
reasons:
“The refusal of leave brought this appeal to a
conclusion. Contrary to what you maintain in your letter of 24
December, that refusal does not amount to the determination of a
devolution issue from which an appeal may lie to the Supreme Court of
the United Kingdom. There has been no such determination by the High
Court. Quite the contrary, the appeal was not given leave to proceed.
This case is at an end and no further procedure is competent.”
B. Relevant domestic law and practice
1. HM Advocate v. McLean [2009] HCJAC 97
- At
the time of the above judgment (and the time of the present
applicant’s trial), sections 14 and 15 of the Criminal
Procedure (Scotland) Act 1995 (“the 1995 Act”) provided
that a person detained at a police station had the right to have the
fact and place of his detention intimated to a solicitor, but did not
have the automatic right of access to a solicitor either prior to or
during a police interview.
- Sections
14 and 15 of the 1995 Act gave legislative effect to the
recommendations of the Thomson Committee on criminal procedure in
Scotland. The Committee recommended the introduction of a limited or
temporary form of arrest, arrest on suspicion, which should be given
the separate name of “detention” (as distinct from arrest
after a suspect is charged). Detention should not last longer than
was necessary in the interests of justice, should be succeeded as
soon as possible by either release or arrest, and should not exceed a
fixed period of time at the end of which the detained person should
either be released or arrested and charged. The Committee considered
that while an arrestee should be entitled to an interview with a
solicitor, it should be a matter of police discretion whether to
allow a detainee an interview with his solicitor. In making this
recommendation, the Committee noted that the purpose of interrogation
of a suspect/detainee was to obtain from him such information as he
might possess regarding the offence, and this purpose might be
defeated by the participation of his solicitor.
- The compatibility of sections 14 and 15 of the 1995
Act with this Court’s judgment in Salduz v. Turkey [GC],
no. 36391/02, ECHR 2008 was considered by the High Court of
Justiciary sitting as a court of criminal appeal (“the Appeal
Court”) in HM Advocate v. McLean.
- The
Appeal Court considered that Salduz was open to
interpretation. It could, on the one hand, be read as requiring that
every jurisdiction have in place a system where access to a lawyer
was ordinarily provided as from the first interrogation of a person,
whatever safeguards there may otherwise be for a fair trial.
Alternatively, the Court could have required that access to legal
advice be seen against the guarantees which were otherwise in place
to secure a fair trial.
- The
Appeal Court favoured the latter interpretation. Proceeding on that
basis, it was satisfied that the guarantees available under the
Scottish system were sufficient to secure a fair trial of someone who
was interviewed without access to a lawyer and whose responses were
relied on by the prosecution. The Appeal Court stated:
“[27] In the first place it is
important to notice that Scots law is particularly jealous to protect
a person who has, in the domestic sense, been charged with a crime,
that is a person who, having been cautioned that he need not respond,
has had read to him by the police the charge or charges which they
propose should be preferred against him. Such a person, if arrested,
has the right to have a solicitor informed of what has happened and
to a subsequent interview with him before his appearance in court. He
may not, after caution and charge, be further questioned by the
police. He may, if he chooses, make a voluntary statement but that is
taken by officers not involved in the inquiry. Problems occasioned by
these protections persuaded the Thomson Committee to recommend, and
Parliament to endorse, a form of limited or temporary apprehension on
suspicion - to which they gave the separate name of ‘detention’.
A number of safeguards apply to persons in detention. Before being
questioned by the police the detainee must be cautioned that he need
not answer any questions put - other than certain formal particulars
(section 14(10) [of the 1995 Act]) - but that, if he does answer, his
answers will be recorded and may be used in evidence. In all serious
cases the interview is tape recorded - and in some cases, as in the
present case, video recorded - with the tape or tapes sealed at the
conclusion of the interview. While the police may question the
detainee, and may do so persistently and robustly, they are not
entitled to coerce him or otherwise to treat him unfairly. If they do
so, that will render any incriminating answers which he gives
inadmissible in evidence at his subsequent trial (Lord Advocate’s
Reference (No.1 of 1983) 1984 JC 52). Challenges to admissibility
on such grounds may be made either in advance of the trial or in its
course. The accused is entitled to give evidence as to the
circumstances of the questioning during detention without being
required to answer any questions as to the substance of the charge or
charges; thus his right to silence at his trial is protected. The
onus of proving that any admission made by the accused in the course
of detention was fairly elicited is on the prosecution (Thompson v
Crowe 2000 JC 173). The trial judge must forthwith rule on the
challenge to admissibility by either excluding or admitting the
answers in evidence. (It is noted that in Salduz the Izmir
State Security Court did not ‘take a stance’ on the
admissibility of the applicant’s statements - para 57). Even
where the judge admits the answers, the jury in solemn cases is
entitled to take into account the circumstances in which any
incriminating answers were given and, if they think fit, to give no
or little weight to such answers. As explained in the caution, a
suspect is entitled to decline to answer any of the questions (other
than the formal questions) put by the police. That right when
exercised is respected. The jury is expressly directed at the trial
that it may not draw any inference adverse to the accused from any
declinature to answer police questions. Even if the accused makes an
admission during detention which is held to have been freely and
voluntarily given in fair circumstances, he cannot be convicted on
the basis of that admission alone. Scots law requires that there be
corroboration by independent evidence (Morton v HM Advocate
1938 JC 50; Sinclair v Clark 1962 JC 57). A person may not be
detained for more than six hours; it may be less (section 14(2) [of
the 1995 Act]) - as it was in this case. He must be informed
immediately upon the termination of his detention that his detention
has been terminated (section 14(2)). He may not be further detained
on the same grounds or on any ground arising out of the same
circumstances (section 14(3)). Although a detained person has no
right to have access to a lawyer before being questioned, he is
entitled to have the fact of his detention and of the place where he
is detained intimated without unreasonable delay to a solicitor and
to one other person reasonably named by him (section 15(1)).
Additionally, the police may, if they think fit, allow a lawyer or
other person to be present during the detention. This discretion is
likely to be exercised where the detainee is perceived to be a
vulnerable person.”
- The Appeal Court added that, if it was wrong in its
interpretation of Salduz, it had to consider the effect of
that assumption. Ordinarily, as a result of the obligation to take
account of Strasbourg jurisprudence under the Human Rights Act 1998,
United Kingdom courts should not without good reason depart from the
principles laid down in a carefully considered judgment of the
European Court sitting as a Grand Chamber. However, there was no
evidence that, in Salduz, the implications for the Scottish
system had been “carefully considered” by the Grand
Chamber. In those circumstances the Appeal Court was of opinion that,
while the judgment in Salduz commanded great respect, it was
not obliged to apply it directly in Scotland. Thus, even if Salduz
amounted to the expounding of a principle that Article 6
required that access to a lawyer should be provided as from the first
interrogation of a suspect by the police, the Appeal Court was
satisfied that that principle could not and should not be applied
without qualification in Scotland. In particular, if other safeguards
to secure a fair trial of the kind which it had described were in
place, there was, notwithstanding that a lawyer is not so provided,
no violation of Article 6.
2. Cadder v. HM Advocate [2010] UKSC 43
- Peter
Cadder was detained in May 2007 following an incident in which two
men had been attacked by a group of youths. He was taken to a police
station and interviewed, under caution but without the presence of a
lawyer, by two police officers. During the interview he made a number
of admissions with regard to the offences with which he was later
charged. He was then arrested, cautioned and charged with assault and
breach of the peace. At trial the audio tape recording of his police
interview was played in full to the jury and they were given copies
of the transcript. On 29 May 2009 he was convicted on all charges. He
appealed against conviction inter alia on the ground that his
interview had been relied on at trial. His appeals to the Appeal
Court were refused on the papers at the first and second sift stages.
He then submitted an application for special leave to appeal to the
Supreme Court.
- On
26 October 2010 the Supreme Court unanimously found that: (i) McLean
had been incorrectly decided by the Appeal Court; (ii) Cadder’s
case should be remitted to the Appeal Court for further
consideration; (iii) and its ruling should not apply retroactively.
- On
the first issue, Lord Hope found that the Appeal Court had erred in
its interpretation of Salduz. The Grand Chamber’s
judgment was to be understood as laying down two statements of
principle: that access to a lawyer should be provided as from the
first interrogation of suspect; and that the rights of the defence
would be irretrievably prejudiced when incriminating statements made
during police interrogation without access to a lawyer were used for
a conviction. There was room for a certain flexibility in the
application of these requirements but they did not permit a
systematic departure from it, which was what had occurred under the
1995 Act. As to whether Salduz should be followed, Lord Hope
noted that the judgment had been given by a unanimous Grand Chamber,
it had been repeatedly followed in subsequent cases and was now
firmly established in the jurisprudence of this Court. Lord Hope also
observed that the majority of those Contracting States which prior to
Salduz did not afford a right of legal representation at
interview (Belgium, France, the Netherlands and Ireland) had
recognised that their legal systems were, in that respect, inadequate
(see the decision of the Supreme Court of the Netherlands LJN Bh3079,
30 June 2009; decision no. 2010-14/22 QPC, 30 July 2010 of the
Conseil Constitutionnel; and the Court of Cassation’s judgments
no. 5699, 5700 and 5701, 19 October 2010). If Scotland were not to
follow the example of others it would be alone in not doing so, and
would find no support in England and Wales or Northern Ireland, both
of which allowed the right of access to a lawyer.
- For
Lord Hope there was also no room for finding that the guarantees
otherwise available under the Scottish system were sufficient to
secure a fair trial. Those guarantees were commendable but were, in
truth, incapable of removing the disadvantage that a detainee would
suffer if, not having access to a solicitor for advice before he was
questioned by police, he made incriminating admissions or said
something which enabled the police to obtain incriminating evidence
from other sources which was then used against him at his trial.
- Lord
Rodger, concurring in judgment, stated that the many other safeguards
which existed in Scots law for accused persons, and which the Appeal
Court had relied upon, were “beside the point”. This
Court’s reasoning in Salduz was based on the implied
right of an accused person not to incriminate himself. This being so,
the only safeguards in Scots law which could be relevant would be
those which were designed to protect that right. The safeguards
relied on by the Appeal Court, though admirable and going further
than some other systems, could not, and did not, protect that right.
Instead, it was clear from the recommendations of the Thomson
Committee that the purpose of sections 14 and 15 of the 1995 Act was
intended to give the police and prosecution an enhanced possibility
of obtained incriminating admissions from the suspect which could
then be deployed in evidence at his trial. The procedure provided for
in those sections was, therefore, the very converse of what the Grand
Chamber held to be required in Salduz. For this reason, in
Lord Rodger’s view, there was “not the remotest chance”
that this Court would find that, because of the other protections
Scots law provided for accused persons, the Scottish system was
compatible with Articles 6 §§ 1 and 3(c).
- On
the third issue, the effect of the Supreme Court’s ruling, both
Lord Hope and Lord Rodger (with whom the other Justices agreed) held
that, in the interests of legal certainty, the ruling should not
permit the re-opening of closed cases, but rather only apply to cases
which had not yet gone to trial, to cases where the trial was still
in progress and to appeals that had been brought timeously. For all
closed cases it was a matter for the Scottish Criminal Cases Review
Commission to decide whether the cases should be referred back to the
Appeal Court and for that court to decide what course it ought to
take if a reference were to be made to it by the Commission.
3. Criminal Procedure (Legal Assistance, Detention and
Appeals) (Scotland) Act 2010
- Immediately
after the Cadder ruling, the above Act (“the 2010 Act)
was passed by the Scottish Parliament. It amends the Criminal
Procedure (Scotland) Act 1995 to allow a suspect the right to have
intimation sent to a solicitor inter alia that the solicitor’s
professional assistance is required by the suspect. It also provides
for the right to a private consultation with a solicitor before any
questioning begins and at any other time during such questioning.
Consultation includes, for example, consultation by means of
telephone. The 2010 Act also provides that a suspect must be informed
of these rights.
- The
Scottish Criminal Cases Review Commission is a public body with the
task of reviewing and investigating cases where it is alleged a
miscarriage of justice has occurred. The 2010 Act amends the
provisions of the 1995 Act which give the Commission the power to
refer cases to the Appeal Court. The 2010 Act directs the Commission,
in determining whether or not it is in the interests of justice that
a reference should be made, to have regard to the need for finality
and certainty in the determination of criminal proceedings. The 2010
Act also gives the Appeal Court the power to reject a case which has
been referred to it by the Commission if the court considers that it
is not in the interests of justice that any appeal arising from the
reference should proceed. The Act provides that, in determining
whether or not it is in the interests of justice that any appeal
arising from the reference should proceed, the Appeal Court must have
regard to the need for finality and certainty in the determination of
criminal proceedings.
COMPLAINTS
- The
applicant complains first, under Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1, that his trial was
unfair because he was denied access to a lawyer during his detention
and his statement to the police was subsequently relied on by the
prosecution at trial.
- Second,
the applicant complains that the presiding judge at his trial was a
temporary judge who had “political affiliations”. This,
he submits, meant that he was not tried before an independent and
impartial tribunal within the meaning of Article 6 § 1.
- Third,
the applicant complains that the presiding judge stated that the
evidential position, brought about in part by the admission of the
applicant’s taped interview, gave rise to a necessity that he
give evidence in order to escape conviction. This amounted to a
breach of the presumption of innocence as guaranteed by Article 6 §
2.
- Fourth,
relying on the Court’s judgment in Taxquet, cited
above, he complains that the jury failed to provide reasons for their
decision.
- Fifth,
he complains under Article 13 that he had no effective remedy at
national level.
THE LAW
- Articles
6 and 13, where relevant, provide as follows:
Article 6
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
...
“3. Everyone charged with a criminal
offence has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Lack of access to a lawyer during detention
- The
Court considers that it cannot, on the basis of the case file,
determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the
Rules of Court, to give notice of it to the respondent Government.
B. Other complaints
- For
the applicant’s second and third complaints – concerning
the independence and impartiality of the presiding judge and the
alleged breach of the presumption of innocence – the Court
notes that the applicant did not include these complaints in his
appeal against conviction. As such, even assuming that these
complaints are substantiated, he has failed to exhaust domestic
remedies. These complaints must therefore be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
- For
the applicant’s fourth complaint – the fact that the jury
did not provide reasons for its verdict – the Court considers
that this complaint is indistinguishable from that considered and
rejected by it in Judge v. the United Kingdom (dec.), no.
35863/10, 8 February 2011. Accordingly, this part of the application
must be rejected as manifestly ill founded, pursuant to Article 35 §§
3 and 4 of the Convention.
- Finally,
the applicant has relied on Article 13 when read in conjunction with
his Article 6 complaints as to the independence and impartiality of
the presiding judge, the alleged breach of the presumption of
innocence, and the absence of reasons for the jury’s verdict.
The Court considers that, since these substantive complaints have
been found to be inadmissible, his ancillary complaints under Article
13 must also be rejected, pursuant to Article 35 §§ 3 and 4
of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s
complaint concerning his lack of access to a lawyer during detention;
Declares the remainder of the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
