Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Justice Clerk Lord Osborne Lord Kingarth Lord Eassie Lord Wheatley Lady Paton	[2009] HCJAC 97 Appeal No: XC286/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in REFERENCE BY THE SHERIFF AT TAYSIDE CENTRAL AND FIFE AT FORFAR in the cause HER MAJESTY'S ADVOCATE Respondent; against DUNCAN McLEAN Minuter: _______

Respondent: W J Wolffe, Q.C., A.D., S Collins; Crown Agent

Respondent: Advocate General, E Creally; Office of Advocate General

Minuter: C Shead, J MacDonald; Drummond Miller WS

22 October 2009

Introduction

[1] The minuter, who was born on 22 November 1988, has been charged on indictment in the Sheriff Court at Forfar with theft of a motor vehicle and wilful fire-raising. The offences are alleged to have been committed between late on Sunday 20 July and early on Monday 21 July 2008. In the early hours of 23 July police officers investigating these incidents detained the minuter under section 14 of the Criminal Procedure (Scotland) Act 1995. He was taken to Arbroath Police Station where, between 0417 and 0502 hours, he was interviewed under caution by police officers in connection with these incidents. The interview was recorded on tape and was videoed. The minuter was not, prior to the interview, offered an opportunity to have legal advice nor was a legal representative present while he was being interviewed. He did not request such advice or representation. He had requested, as he was entitled to do (1995 Act, section 15(1)), that intimation be made to a named solicitor of the fact and place of his detention. This was done about 0303 hours by leaving a message on that solicitor's firm's telephone answering machine. He did not request intimation to be made to any other person. In the course of the interview he made a number of admissions upon which the Crown intends to rely at trial. It is conceded that such evidence, if admitted, would fall to be regarded as material evidence, albeit the Crown also intends to rely upon other evidence. There is no suggestion - at least at this stage in the proceedings - that the minuter was coerced or subjected to any other improper treatment in the course of the interview, or at any other time.

[2] On 25 March 2009, an indictment having been served upon him, the minuter lodged a devolution minute in which he contended that the leading of the evidence in relation to the interview, in the absence of the minuter having been afforded the opportunity of either legal advice upon being taken into police custody prior to the interview taking place or the presence of his solicitor during interview, would be contrary to his rights conferred by Article 6(3)(c) of the European Convention on Human Rights. The sheriff, under reference to the decision of this court in Paton v Ritchie 2000 JC 271 and the decision of the Grand Chamber of the European Court of Human Rights in Salduz v Turkey (Application No. 36391/02, 27 November 2008) has referred certain questions to this court for determination. In view of the decision in Paton v Ritchie and its endorsement by a five-judge bench in Dickson v HM Advocate 2001 JC 203 a bench of seven judges was convened to determine the reference.

[3] The first of the questions posed in the reference is in the following terms:

"Does the fact that legal representation is not available from the moment of entry into police custody, constitute a violation of an accused person's rights under Article 6(1) and 6(3)(c)?"

The court found it unnecessary and inappropriate to answer the second question posed (which encompasses two questions which might call for different answers). Counsel for the minuter had framed two additional questions which the court might find it appropriate to answer. The court decided to answer the first of these questions, subject to certain modifications. That question, as modified, was in the following terms:

"On the assumption that the Lord Advocate sought to rely on the evidence of the interview in seeking a conviction would she, by reason only of the accused not having had an opportunity to have legal advice before the interview, be acting incompatibly with the accused's right to a fair trial guaranteed by Article 6(3)(c) and 6(1) and accordingly would that act be ultra vires in terms of section 57(2) of the Scotland Act 1998?"

The court, having heard parties, including the Advocate General for Scotland, on 22 October 2009 answered each of the first question and the modified additional question in the negative. This opinion expresses its reasons for so answering these questions.

The statutory background

[4] Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (as amended) are 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

(c) where there are no longer such grounds as are mentioned in the said 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.

...

(6) At the time when a constable detains a person under subsection (1) above, he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention; and there shall be recorded -

(a) the place where the detention begins and the police station or other premises to which the person is taken;

(b) any other place to which the person is, during the detention, thereafter taken;

(c) the general nature of the suspected offence;

(d) the time when detention under subsection (1) above begins and the time of the person's arrival at the police station or other premises;

(e) the time when the person is informed of his rights in terms of subsection (9) below and of subsection (1)(b) of section 15 of this Act and the identity of the constable so informing him;

(f) where the person requests such intimation to be sent as is specified in section 15(1)(b) of this Act, the time when such request is -

(i) made;

(ii) complied with; and

(g) the time of the person's release from detention or, where instead of being released he is arrested in respect of the alleged offence, the time of such arrest.

(7) Where a person is detained under subsection (1) above, a constable may -

(a) without prejudice to any relevant rule of law as regards the admissibility in evidence of any answer given, put questions to him in relation to the suspected offence;

(b) exercise the same powers of search as are available following an arrest.

...

(9) A person detained under subsection (1) above shall be under no obligation to answer any question other than to give the information mentioned in subsection (10) below, and a constable shall so inform him both on so detaining him and on arrival at the police station or other premises.

(10) That information is -

(a) the person's name;

(b) the person's address;

(c) the person's date of birth;

(d) the person's place of birth (in such detail as a constable considers necessary or expedient for the purpose of establishing the person's identity); and

(e) the person's nationality.

...

15(1) ... a person who

...

(b) is being detained under section 14 of this Act and has been taken to a police station or other premises or place, shall be entitled to have intimation of his detention and of the police station or other premises or place sent to a solicitor and to one other person reasonably named by him,

without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary.

(2) A person shall be informed of his entitlement under subsection (1) above -

(a) on arrival at the police station or other premises; or

(b) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention."

Special arrangements are made under subsection (4) for intimation to a parent where the person detained appears to be a child.

[5] These provisions are, subject to minor amendments, re-enactments of sections 2 and 3 of the Criminal Justice (Scotland) Act 1980. That statute gave legislative effect to certain recommendations of the report entitled "Criminal Procedure in Scotland (2^nd Report)", Cmnd. 6218/1975, prepared by a Committee under the chairmanship of Lord Thomson ("Thomson II"). In Chapter 2 of Thomson II the Committee examined the subjects of arrests, search and interrogation of suspects. It noted at para 2.01:

"In these and certain other areas there is a general problem, namely the conflict between the public interest in the detection and suppression of crime on the one hand and the interest of the individual citizen in freedom from interference by the police on the other."

At para 2.03 it added:

"Any solution to the individual problems under consideration must necessarily be a compromise between these two interests - that of the public as represented by the police, and that of the individual. It must meet the requirements of the police for such powers as are necessary to enable them to carry out the duties of crime-detection in the interests of society, without giving them power to ride roughshod over individuals; it must safeguard the individual's right to go about his lawful business free from unreasonable police interference, and his right to have his personality and human dignity respected when he is in the hands of the police, without creating a situation in which criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights."

In Chapter 3 the Committee noted that under the existing law a person was "under arrest when he is taken into custody and kept by officers of law in custody until such time as he is brought before a court or liberated by judicial or quasi-judicial process" (para 3.01). That status was to be distinguished from one in which an individual went or stayed with the police voluntarily "to assist with their enquiries". Arrest marked, it noted, an alteration in the status of the person arrested:

"... he loses not only the right to liberty, but the right to decline to be fingerprinted or searched; he gains the right to have his solicitor informed of what has happened and to a subsequent interview with him; and the police lose any power they may have had to ask him questions the answers to which can be used in evidence." (para 3.08)

Having summarised the problems with the then existing law the Committee made certain recommendations. These included (para 3.15):

"We recommend, therefore, a form of limited, or temporary arrest - arrest on suspicion. Since the rules governing this 'arrest' will differ from those governing arrest at the moment, we give it a separate name - detention. Detention will include power to take to and keep in a police station, but its duration will be limited by the following general rules:

(a) it should not last longer than is necessary in the interests of justice;

(b) it should be succeeded as soon as reasonable by either release or arrest; and

(c) it should not in any event exceed a fixed period of time at the end of which the detainee must be either released or arrested and charged."

One of the purposes of detention as recommended was to enable the police to ask the detainee questions (para 3.24d). The period of detention would not exceed six hours (para 3.25). At para 5.08, in a chapter devoted to the rights of persons in police custody, the Committee recommended an important difference between the rights of an arrestee and of a detainee, namely:

"... whereas the arrestee will be entitled to an interview with his solicitor in the police station, the detainee's right will be confined to having his solicitor advised that he has been detained. It will be a matter of police discretion whether to allow the detainee an interview with his solicitor. We consider that such a discretion is necessary at the stage of investigation prior to arrest."

[6] In Chapter 7 the Committee addressed the matter of interrogation by police officers and the admissibility in evidence of statements made to them by a suspect. At para 7.16 it said:

"Although a person who has been charged with an offence is entitled to an interview with a solicitor, we recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor."

It recommended (para 7.13c) that interrogation of suspects in police stations must be recorded on tape. At para 7.21 it noted:

"The presence of a tape recorder may upset some persons, but on balance we consider that the vast majority of persons will be reassured by knowing that anything that is said will be accurately recorded. The fact that the police know that the interview is being recorded on tape will tend to reduce the chances of interrogation being conducted with any impropriety."

[7] These recommendations sought to achieve a balance between the public interest in the thorough investigation of crimes and the private interest of individuals suspected of having committed them. They received the democratic imprimatur of enactment by Parliament. They have been in place for nearly thirty years without serious concern in Scotland that the interests of suspected persons are being prejudiced. It is clear that Parliament did not intend that a detained person should have, in general, the right to have legal representation or advice during detention. No express provision to that effect was made. The fact that express provision was made that a detained person should have the right to have a solicitor informed of his detention negates any implication of a general right to legal representation or advice. That does not exclude there being a discretion in the police to admit such representation or advice or there being particular circumstances where fairness demands that such be made available. Section 14 now requires to be interpreted against section 3(1) of the Human Rights Act 1998. But as, for reasons subsequently explained, we regard that section, ordinarily construed, as compatible with the relevant Convention rights, no question of giving it an extended interpretation arises.

Article 6 and UK Legislation

[8] Article 6 of the European Convention on Human Rights provides:

"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public 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."

The Scotland Act 1998 provides by section 57(2):

"A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights. ...".

The Lord Advocate is a member of the Scottish Executive. The prosecution of the minuter is at her instance.

[9] The Human Rights Act 1998 provides by section 2(1):

"A court ... determining a question which has arisen in connection with a Convention right must take into account any -

(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

...

whenever made or given, so far as, in the opinion of the court ..., it is relevant to the proceedings in which that question has arisen."

Prior Scottish authority

[10] Shortly after the coming into force of the Scotland Act 1998 the issue of whether the act of a prosecutor in seeking to lead evidence of a statement made by a suspect when detained under section 14(1) without having or having had legal advice or representation was incompatible with Article 6 was tested in Paton v Ritchie. The court held that neither Scots law nor the European Convention required that in all cases a detainee be offered the opportunity to have a solicitor present. At page 275 it observed:

"From the decisions of the European Court of Human Rights and of the European Commission of Human Rights, to which we were referred, we can derive the following propositions: (1) The right set out in art 6(3)(c) is one element among others of the concept of a fair trial in criminal proceedings to which art 6(1) relates (Imbrioscia v Switzerland, para 37). (2) Article 6, including para (3)(c), applies throughout, including at the stage of preliminary investigation (Imbrioscia v Switzerland, para 36; Murray v United Kingdom at para 62). (3) Article 6(3)(c) does not specify the manner by which the right to 'defend himself in person or through legal assistance of his own choosing ...' is to be exercised. It is left to the contracting state to choose the means of ensuring that it is secured. In considering whether the methods chosen are consistent with the requirements of a fair trial it has to be remembered, as we have already noted, that the Convention is designed to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The European Court in Imbrioscia at para 38 also said: 'In addition, the court points out that the manner in which Article 6(1) and (3)(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 - a fair trial - has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case'. (4) Article 6(3) does not state expressly, but it implies, the right of an accused to communicate with his lawyer as a fundamental part of the preparation of his defence (Windsor v United Kingdom). (5) However, that right cannot be said to be unsusceptible of restriction. If the accused has been questioned without his solicitor being present, the question is whether this is in conformity with the general principle of fairness laid down in art 6(1) (Windsor v United Kingdom; Robson v United Kingdom).

It is clear from the above, as counsel accepted, that art 6(3)(c) does not create a universal right in an accused to have access to his solicitor before or during questioning by the police. That there are cases in which this may be essential in order that the concept of fairness can be satisfied is demonstrated by the decision of the European Court in Murray v United Kingdom. Its circumstances were unusual in respect that the trial judge decided, as he was entitled to do under legislation relating to the prevention of terrorism, that an adverse inference should be drawn from the fact that the accused had elected to remain silent while he was questioned by the police. The accused had also been denied legal advice for 48 hours during which he had not answered their questions. At para 66 the court observed: 'To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may well be irretrievably prejudiced, is - whatever the justification for such denial - incompatible with the rights of the accused under Article 6.'

That case is far removed from the present. In Scotland no adverse inference can be drawn from the fact that an accused person was silent when he was questioned by the police (Robertson v Maxwell). Further, as was pointed out by the Advocate-depute, the absence of a caution is likely to imperil the admissibility of anything said in response to a police officer who is exercising his power under sec 14(7) of the 1995 Act to question the person detained in relation to the suspected offence (see Tonge v HM Advocate)."

[11] Counsel for the minuter did not dispute any of the five propositions formulated in the first of these paragraphs except the fifth, which he maintained was incomplete as it did not acknowledge the requirement that " as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police" (Salduz, para 55).

[12] The view of the court in Paton v Ritchie was subsequently endorsed by a court of five judges (Dickson v HM Advocate, especially per Lord Cameron of Lochbroom at para [24] and Lord Macfadyen at para [7]).

Salduz v Turkey

[13] The application by Yusuf Salduz to the European Court of Human Rights was first heard by a Chamber comprising seven judges of that court. That Chamber held (by a majority of five to two) that there had been no violation of Article 6(3)(c) of the Convention on account of the lack of legal assistance while the applicant was in police custody (Salduz v Turkey, 26 April 2007). The two dissenting judges were of opinion that there had been such a violation. The case was then referred to the Grand Chamber where it was heard by seventeen judges. The court unanimously held that there had been a violation of Article 6(3)(c) of the Convention in conjunction with Article 6(1) on account of the lack of legal assistance to the applicant while he was in police custody. Nine judges were party to the opinion of the court. Separate concurring opinions were delivered by (1) the President (Judge Bratza), (2) Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska and (3) Judge Zagrebelsky, joined by Judges Casadevall and Türmen.

[14] Before considering the opinions delivered it is necessary to narrate the particular circumstances of the application. At about 10.15pm on 29 May 2001 the applicant, who was then seventeen years of age, was taken into police custody by officers of the Anti-Terrorism Branch of the Izmir Security Directorate. He was suspected of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers' Party of Kurdistan). He was also accused of hanging an illegal banner from a bridge a few weeks earlier. Some hours after his apprehension he was interrogated at the Anti-Terrorism branch in the absence of a lawyer. According to a form which he had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement he made certain admissions. He was brought before the public prosecutor and subsequently the investigating judge on 1 June (the report does not disclose when on that date these events occurred). Before the investigating judge the applicant made a statement in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. Only after his questioning by the investigating judge had been concluded was he allowed access to a lawyer. He was subsequently tried on indictment before the State Security Court and, although again rejecting the police statement, alleging that it had been extracted from him under duress, was convicted. He was sentenced to four years and six months' imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence. The State Security Court had regard to among other things, the applicant's statements to the police. It concluded "... in view of these material facts, the court does not accept the applicant's denial and finds that his confession to the police is substantiated". So far as appears from the report, there was no procedural mechanism whereby the applicant's admissions to the police could be excluded as inadmissible on the ground that they had been extracted under duress. The applicant's subsequent domestic appeal against conviction was unsuccessful.

[15] The Grand Chamber noted various international instruments, including instruments concerned with procedure in juvenile cases and instruments concerned with a right of access to a lawyer during police custody. Among the latter instruments noted were reports following visits to Turkey of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

[16] In its assessment of the general principles applicable to the case the Grand Chamber said:

"50. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a 'tribunal' competent to determine 'any criminal charge', it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (Imbrioscia, cited above, para 36). As the Court has already held in its previous judgments, the right set out in paragraph 3(c) of Article 6 of the Convention is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 (Imbrioscia, cited above, (para 37), and Brennan, cited above, para 45).

51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial (Poitrimol v France, 23 November 1993, para 34, Series A no. 277-A, and Demebukov v Bulgaria, no. 68020/01, para 50, 28 February 2008). Nevertheless, Article 6(3)(c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to 'guarantee not rights that are theoretical or illusory but rights that are practical and effective' and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (Imbrioscia, cited above, para 38).

52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, para 63; Brennan, cited above, para 45, and Magee, cited above, para 44).

53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37-42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.

54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (Can v Austria, no. 9300/81, Commission's report of 12 July 1984, para 50, Series A no. 96). [At] the same time an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v Germany [GC], no. 54810/00, para 100, 2006 - ..., and Kolu v Turkey, no.35811/97, para 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, para 101). [In this] connection, the Court also notes the recommendations of the CPT (paragraphs 39-40 above), in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.

55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently 'practical and effective' (see paragraph 51 above) Article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, para 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction."

[17] The Grand Chamber then addressed the application of these principles to the case before it. In paragraph 57 it noted, among other things, that

"... not only did the Izmir State Security Court not take a stance on the admissibility of the applicant's statements made in police custody before going on to examine the merits of the case, it also used the statement to the police as the main evidence on which to convict him, despite his denial of its accuracy."

It continued:

"58. Thus, in the present case, the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. However, it is not for the Court to speculate on the impact which the applicant's access to a lawyer during police custody would have had on the ensuing proceedings."

In para 59 the Grand Chamber noticed that neither the letter nor the spirit of Article 6 of the Convention prevented a person waiving his entitlement to the guarantees of a fair trial but that any such waiver required to be established in an unequivocal manner. It then said:

"Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent."

At para 60 the Grand Chamber referred to the applicant's age and stressed the fundamental importance of providing access to a lawyer where the person in custody is a minor.

[18] It concluded its assessment thus:

"61. Still, in the present case, as explained above, the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the state security courts.

62. In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights."

Its conclusion at para 63 was:

"In view of the above, the Court concludes that there has been a violation of Article 6(3)(c) of the Convention in conjunction with Article 6(1) in the present case."

[19] At para 72 it was stated that the most appropriate form of redress would be a retrial of the applicant in accordance with Article 6.

[20] In his concurring judgment Judge Bratza said:

"The central issue in the present case concerns the use made in evidence against the applicant of a confession made during the course of police interrogation at a time when he had been denied access to a lawyer. The Grand Chamber has found that the restriction on such access irretrievably prejudiced the applicant's rights of defence and that neither the legal assistance subsequently provided to the applicant nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred while the applicant was in police custody. The applicant's rights under Article 6(3)(c), read in conjunction with Article 6(1), were accordingly violated on account of this lack of legal assistance. I am in full agreement with this conclusion.

In paragraph 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently 'practical and effective', Article 6 requires that, as a rule, access to a lawyer should be provided 'as from the first interrogation of a suspect by the police'. This principle is consistent with the Court's earlier case-law and is clearly sufficient to enable the Court to reach a finding of a violation of Article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under Article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre-trial detention. ..."

[21] The joint concurring opinion of Judges Rozakis and others agreed with the court's conclusion as to Article 6(3)(c) in conjunction with Article 6(1). It also made certain observations on the issue of redress.

[22] Judge Zagrebelsky, with whom two other judges joined, said:

"To my vote in favour of the judgment's operative provisions, I would like to add a few words to explain the meaning of the Court's reasoning, as I understand it.

...

To my mind the meaning of the Court's judgment is quite clear. If there is any doubt at all, what the Court says in paragraph 53, referring back to paragraph 37, makes things clearer still. The generally recognised international standards, which the Court accepts and which form the framework for its case-law, provide: 'An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions ...".

It is therefore at the very beginning of police custody or pre-trial detention that a person accused of an offence must have the possibility of being assisted by a lawyer, and not only while being questioned.

The importance of interrogations in the context of criminal procedure is obvious, so that, as the judgment makes clear, the impossibility of being assisted by a lawyer while being questioned amounts, subject to exceptions, to a serious failing with regard to the requirements of a fair trial. But the fairness of proceedings against an accused person in custody also requires that he be able to obtain (and that defence counsel be able to provide) the whole wide range of services specifically associated with legal assistance, including discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support to an accused in distress, checking his conditions of detention and so on.

The legal principle to be derived from the judgment is therefore that, normally and apart from exceptional limitations, an accused person in custody is entitled, right from the beginning of police custody or pre-trial detention, to be visited by defence counsel to discuss everything concerning his defence and his legitimate needs. Failure to allow that possibility, regardless of the question of interrogations and their use by the courts, amounts, subject to exceptions, to a violation of Article 6 of the Convention.

I would add that, naturally, the fact that defence counsel may see the accused throughout his detention in police stations or in prison is more apt than any other measure to prevent treatment prohibited by Article 3 of the Convention.

...".

Although Judge Zagrebelsky bears to explain the meaning, as he understands it, of the Court's judgment, it is in our view clear that he goes beyond it. He appears to have been concerned with, among other things, possible violations of Article 3.

Discussion

[23] The applicant, Salduz, had presented his application on the basis of an alleged violation of Article 6(3)(c). However, the Grand Chamber in its reasoning recognised, rightly in our view, that that provision could not be addressed in isolation from Article 6(1). In para 55 it makes its crucial finding on the basis of its view as to what Article 6(1) requires; in its conclusion it holds that there "has been a violation of Article 6(3)(c) of the Convention in conjunction with Article 6(1) ...". In Deweer v Belgium (1980) Series A 35; 2 EHRR 439 at para 56 the court observed that paragraphs (2) and (3) of Article 6 "represent specific applications of the general principles stated in paragraph (1) ... [They] are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings". The right under Article 6(3)(c) is, like that under 6(3)(d), a minimum right (Al Khawaja and Tahery v United Kingdom
[2009] ECHR 110) but, in contrast to the right under Article 6(1), is not an absolute right (Horncastle and Others v R [2009] EWCA Crim 964). While in some circumstances it may be relevant to ask whether there has been a violation of Article 6(3)(c) in isolation, the relevant question in the present case is whether the circumstance that the minuter did not have access to a solicitor prior to being interviewed by the police would render unfair any trial in which reliance is placed by the prosecutor on his responses during that interview. The critical issue is thus whether there is a prospective violation of Article 6(1).

[24] The first sentence of paragraph 55 of the Grand Chamber's judgment in Salduz is open to interpretation. The Court finds that Article 6(1) requires that "as a rule" access to a lawyer should be provided "unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right". Thus, the requirement is subject to exception where such particular demonstration is made. Additionally, the requirement applies only "as a rule". On one reading the sentence may import that the Court is laying down that every jurisdiction must, to be compliant with the Convention, have in place a system under which such access is ordinarily provided as from the first interrogation, whatever safeguards there may otherwise be for a fair trial. Alternatively, the Court may, while indicating what it would generally expect, be recognising that the issue as to whether or not there has been a fair trial will depend on the particular circumstances of the case, including what arrangements the jurisdiction in question has made for access to legal advice, seen against the guarantees which are otherwise in place in that jurisdiction to secure a fair trial. Neither the phrase "as a rule" nor the French version "en règle générale" gives any clear pointer to which interpretation is to be preferred. Nor does the phrase "in principle" (French "en principe") in the final sentence of the paragraph assist. As, however, that final sentence makes plain, the issue for decision in Salduz was whether incriminating statements made in certain circumstances irretrievably prejudiced the rights of the defence. That issue could be reformulated as whether such statements, if admitted at the trial, would irretrievably prejudice such rights. The Court has consistently taken the view that questions of the admissibility of evidence are principally matters for the domestic courts (Brennan v United Kingdom (2002) 34 EHRR 507, at para 51). That the Court also found it appropriate to discuss in paragraphs 56 and following the application of the general principles to the case before it - rather than holding that lack of access to a lawyer ipso facto led to a violation - may also suggest that a certain flexibility in the application of the requirement was being recognised.

[25] We are inclined to favour the alternative interpretation. Were that not what the Court intended, it would in our view be departing from (or at least substantially developing) its prior case law; Judge Bratza in his concurring opinion expressly says that the principle being enunciated is "consistent with the Court's earlier case-law". In Murray v United Kingdom (1996) 22 EHRR 29 the decision, it seems, turned upon the inferences which could be drawn from the silence of the detainee; in Brennan v United Kingdom the Court was not persuaded that the attendance of the suspect's lawyer during police questioning was an indispensable precondition of fairness within the meaning of Article 6(1). If lack of access to a lawyer and subsequent use of incriminating statements were themselves to have been regarded as giving rise to a violation of Article 6(1), one would have expected these cases to have been decided on that straightforward basis (see also Ivakhnenko v Russia, Application 12622/04, 21 October 2008). The Grand Chamber in Salduz appears to have been particularly influenced by the case of Jalloh v Germany (2007) 44 EHRR 32 where, in contrast to the present case, violation of Article 3 was also in issue.

[26] Accordingly, provided that we are satisfied that the guarantees otherwise available under the Scottish system are sufficient to secure a fair trial for a person who, while detained, is interviewed by police officers without access to a lawyer and at whose trial his responses are relied on by the prosecution, a negative answer to the modified additional question would not conflict with the decision and reasoning of the Court in Salduz. We are so satisfied.

[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)) - 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)) - 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.

[28] It has been judicially observed: "The statutory rules relating to the questioning of persons detained at a police station ... now to be found in sections 13-15 ... of the Criminal Procedure (Scotland) Act 1995, have been framed in such a way as to provide appropriate checks and balances in the interests of fairness to the accused" (Brown v Stott 2001 SC (PC) 43, per Lord Hope of Craighead at page 73). Under reference to the same statutory provisions Lord Rodger of Earlsferry has said in connection with the different systems within the United Kingdom:

"As it is entitled to do, Parliament has thus struck the balance differently and established two distinct systems of powers and rights within the same overall constitutional framework of the United Kingdom."

(Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763 at para 87). In paragraph 88 Lord Rodger implicitly approves of the decisions of the High Court of Justiciary in Paton v Ritchie and Dickson v HM Advocate.

[29] But, assuming that we are wrong in our interpretation of paragraph 55 of the Grand Chamber's judgment, we must consider its effect on the basis of that assumption. The Grand Chamber's judgment is not binding on this court. Section 2(1)(a) of the Human Rights Act 1998 requires us to "take into account" judgments of the Court. It has been observed that the House of Lords, sitting as a final court of appeal in an English process of judicial review, "will not without good reason depart from the principles laid down in a carefully considered judgment of the [European] court sitting as a Grand Chamber" (R (Anderson) v Home Secretary [2003] 1 AC 837, per Lord Bingham of Cornhill at para 18). That observation was made in relation to Stafford v United Kingdom (2002) 35 EHRR 1121, a decision which Lord Bingham described as resting "on a clear and accurate understanding of the tariff-fixing process and the Home Secretary's role in it" - the very subject-matter in issue in R (Anderson) v Home Secretary. The decision in Stafford was, of course, also a process to which the United Kingdom was a party. In the present case the United Kingdom was not a party to the process in Salduz. Although a British judge was a member of the Grand Chamber, there is no suggestion in any of the opinions that either he or any of his fellow judges had brought to their attention any features of Scottish criminal procedure - although the Scottish system had previously been examined by the Commission without adverse comment (Robson v United Kingdom (1996) Application no. 25648/94; Windsor v United Kingdom (1988) Application no. 13081/87). The implications for that system cannot be said to have been "carefully considered". In these circumstances we are of opinion that, while the judgment in Salduz commands great respect, we are not obliged to apply it directly in Scotland (R v Spear [2003] 1 AC 734, per Lord Bingham at para 12; Doherty v Birmingham City Council [2009] 1 AC 367, per Lord Scott of Foscote at para 88). This is not, in our view, a situation in which the decision in Salduz requires this court to answer the reference in the minuter's favour (contrast with Secretary of State for the Home Department v AF and Another [2009] UKHL 28).

[30] We were referred to a number of cases subsequent to Salduz - Amutgan v Turkey [2009] ECHR 110, Cimen v Turkey [2009] ECHR 186, Panovits v Cyprus, Application 4268/04, 11 December 2008 and Plonka v Poland, Application 20310/02, 31 March 2009. Although all bear to apply Salduz, none provides any illumination on the principles discussed in it. We did not find these citations to be of assistance.

[31] Further, we are of opinion that the application of Salduz to Scotland is in the first instance a matter for this court to determine. In Kay v Lambeth London Borough Council [2006] 2 AC 465 Lord Bingham observed at para 44:

"The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set ...".

Even if, contrary to our view, the decision of the Grand Chamber in Salduz amounts to the expounding of a principle that Article 6 requires that access to a lawyer should be provided as from the first interrogation of a suspect by the police, we are satisfied that that principle cannot and should not be applied without qualification in this jurisdiction. In particular, if other safeguards to secure a fair trial of the kind which we have described are in place, there is, notwithstanding that a lawyer is not so provided, no violation, in our view, of Article 6. The decisions and reasoning in Paton v Ritchie and Dickson v HM Advocate are approved.

[32] We would add one comment with respect to paragraph 59 of the Grand Chamber's judgment in Salduz. We do not regard the circumstance (recorded in the opening part of the transcript of the minuter's interview) that the minuter was cautioned by the police and that he responded that he understood the caution as a waiver by him of his right to silence (or indeed of any other right). But we do regard it as a circumstance which, with other circumstances, contributed to the fairness of the interview process.

[33] The minuter has not yet stood trial. Our answer to the modified additional question assumes that in due course he does stand trial and that the prosecutor seeks to rely on his responses at the interview (and indeed in circumstances where, as noted in para [1] above, such evidence would, if admitted, be material evidence). Beyond that the outcome of any trial is as yet unknown. We note that the Court has held that a complaint of violation of Article 6(3)(c) was premature while the national proceedings were still pending (Pantea v Romania (2005) 40 EHRR 627 at page 677). We have answered the modified additional question in order to give guidance to the sheriff for the purposes of the trial.

[34] The first question we have also answered in the negative. Mr Shead did not press for an affirmative answer to that question. Clearly, the fact that legal representation was not available does not of itself constitute a violation of Article 6(1) and 6(3)(c) read in conjunction. As the court recognised in Salduz, where there has been an infringement leading to a conviction, a retrial is the appropriate remedy (para 72). It was the use of the statement at the trial, not simply that it had been obtained when legal representation was not available, which constituted the violation.

[35] Having answered both the relevant questions in the negative, we have remitted the case to the sheriff court for trial.