[2006] HCJAC 85

Appeal No: XC373/06

OPINION OF THE COURT

delivered by LORD JOHNSTON

NOTE OF APPEAL

under section 74(1) of the Criminal Procedure (Scotland) Act 1995

SHAHID PERVEZ

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Burns, McSherry, Solicitor Advocates; Hamilton Burns & Co., Glasgow

Alt: K. Stewart, A.D.; Crown Agent

15 November 2006

[1] This is an appeal against a ruling by the trial judge on a preliminary issue raised by the appellant before him by way of minute.

[3 ] The appellant was detained lawfully on 8 July 2005 under the section of the Act for an initial period of six hours. Thereafter, after a gap of approximately one hour, he was re-detained for further interview under the same section of the same Act. It is to that latter sequential interview that objection is taken and, in addition, the appellant lodged a devolution minute complaining that the interview in question, and indeed the detention, contravene Article 5 of the European Convention on Human Rights in terms of the appellant's own rights.

[4 ] The relevant part of the section is in the following terms:

"14.-(1) Where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may, for the purpose of facilitating the carrying out of investigations-

(a) into the offence; and

(b) as to whether criminal proceedings should be instigated against the

person

detain that person and take him as quickly as is reasonably practicable to a police station or other premises and may thereafter for that purpose take him to any other place and, subject to the following provisions of this section, the detention may continue at the police station or, as the case may be, the other premises or place.

(2) Detention under subsection (1) above shall be terminated not more than six hours after it begins or (if earlier)-

(a) when the person is arrested;

(b) when he is detained in pursuance of any other enactment; or

subsection (1),

and when a person has been detained under subsection (1) above, he shall be informed immediately upon the termination of his detention in accordance with this subsection that his detention has been terminated.

(3) Where a person has been released at the termination of a period of detention under subsection (1) above he shall not thereafter be detained, under that subsection, on the same grounds or on any grounds arising out of the same circumstances."

[5 ] Lord MacLean heard evidence and made certain findings in fact. It is sufficient for our purposes to record that the two periods of detention related to different investigations, albeit under an umbrella of a suspicion of an attempt to pervert the course of justice, the first being relating to a lease and to whether it was genuine, and the second relating to an allegation of providing a false statement to the police in support of an invented alibi being put forward by a client of the appellant who subsequently became a co-accused in the present case. It has therefore to be stated at once that although the whole investigation in respect of the two periods of detention was under the umbrella of allegations of attempt to pervert the course of justice, the two periods related to wholly separate and different circumstances and allegations as regards the details.

[6 ] Lord MacLean determined the matter in respect on an issue of fairness, it not being disputed, or at least alleged, that any unfairness had occurred in the course of either interview whether by means of oppressive questioning or any other prejudicial act. He therefore ruled the evidence in relation to the second period of detention admissible against that background.

[7 ] Mr. Burns, solicitor advocate, appearing for the appellant, approached the matter on a different basis, not resisting the suggestion that there had been no unfairness in either of the interviews. His basic position was that at the start of the first interview, or prior to it at the time of the detention, the police had two grounds of suspicion in respect of the appellant and, accordingly, the interviewing process should have been restricted to one period of detention of six hours in relation to both those suspicions. He said, applying the Interpretation Act, that the word "offence" in subsection (1) could mean offences and he founded strongly on the fact that in terms of subsection (3) a person could not be detained after release at the termination of a period of detention on the same grounds or any grounds arising out of the same circumstances. He accordingly submitted that the second period of detention was unlawful and the evidence arising therefrom could not therefore be admitted. He referred us to Grant v H.M. Advocate 1989 S.C.C.R. 618; H.M. Advocate v McMowat 2001 S.C.C.R. 242 and Cairns v H.M. Advocate 1999 S.L.T. 1072. It has, however, to be stated that none of these cases are directly in point on this question of "double suspicion". Mr. Burns accepted that if, in the course of a first interview, material emerged or was brought to the attention of the police for the first time which gave rise to further suspicions, a second period of detention in respect of those latter suspicions was permissible. This, however, he said was not the case in the present matter by reason of the fact that the police had reasonable grounds in both respects before they started the first interview.

[8 ] It also has to be stated that Lord MacLean does not hold emphatically that the police had both suspicions at the outset of the process. What is much more important is that he does draw attention to the different circumstances in each case in respect of the detail of the suspicions.

[9 ] Thereafter, quite separately, Mr. Burns went on to argue that the terms of section 14 of the Act were not sufficiently precise and clear in relation to what a suspected person might be reasonably bound to expect to happen to him when detained, so as to contravene the terms of Article 5 of the Convention, such as was held to exist in Malone v U.K. 7 EHRR 14 and R (Gillan) v The Commissioner of Police of the Metropolis 2006 2 WLR 537 referring particularly to the speech of Lord Hope of Craighead at page 588. Mr. Burns was, however, unable to point to any authority which had successfully attacked the validity of section 14 under the Convention of Human Rights.

[10] The advocate depute in response opened by submitting, against a background of an assumption that the second detention had been irregular, but nevertheless, long established law running from Lawrie v Muir 1950 JC 19 required a court or tribunal to balance the interests of the individual against the context of such an irregularity with the interests of the State in relation to the detection and successful prosecution of crime. He therefore submitted that even if an irregularity had occurred, which he did not accept, the absence of unfairness as found by Lord MacLean rendered the process lawful to the extent of leaving the evidence admissible.

[11] However, turning to the section his principal argument was that subsection (3) did not apply in the present case because the circumstances were not the same. Therefore the second period of detention was lawful, being related to a separate matter, not struck by the Act.

[12 ] With regard to the issue of the devolution minute he simply submitted that the terms of section 14 were absolutely clear. There was a statutory requirement limiting the period to six hours and that was sufficient to meet the terms of the Convention.

[13 ] We are entirely satisfied that the argument presented by the advocate depute in relation to the effect of subsection (3) is correct in the present case in as much as the circumstances giving rise to the separate suspicions were different. It matters not to our mind that it was under the general umbrella of an investigation into an attempt to pervert the course of justice. It equally matters not, if it is the case, that both suspicions were in the mind of the police when they commenced the detention process. They have a right to detain a person for six hours in relation to an alleged offence and re-detention is only struck at if an attempt is made to re-run that initial interview in the same context.

[14 ] In these circumstances the police actions in this case with regard to the second period of detention were entirely lawful and the appeal will be refused.

[15 ] That being so it is not necessary for us to make any determination on the general issue of the balance between irregularity of procedure and the interests of the State in the context of fairness as was elaborated by the advocate depute. It does not seem to us to be appropriate in this case to offer any view on those general matters which may raise difficulties in certain contexts.

[16 ] We are equally satisfied that the statutory enactment limiting the period of detention to six hours is sufficiently clear and precise as to leave no room for any argument under Article 5 of the Convention on Human Rights. We therefore accept the argument of the advocate depute in this respect.

[17 ] For these reasons this appeal is refused and the case will be remitted back for trial in due course.

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Pervez v. Her Majesty's Advocate [2006] ScotHC HCJAC_85 (15 November 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_85.html Cite as: [2006] ScotHC HCJAC_85, 2007 JC 89, [2006] HCJAC 85, 2006 SCCR 707

Scottish High Court of Justiciary Decisons

[2006] HCJAC 85

Appeal No: XC373/06

OPINION OF THE COURT