HER MAJESTY'S ADVOCATE v. LEE JOHN McCANN and WILLIAM SOMERVILLE [1999] ScotSC 21 (19th July, 1999)

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Lee John McCann and William Sommerville have been indicted to stand trial on a variety of charges alleging contraventions of the Misuse of Drugs Act 1971. The matter called before me in respect of Minutes at the instance of both accused. In these they seek a decision by the court that certain of the productions detailed on the list of productions lodged with the indictment, in terms of Section 66(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), are inadmissible as evidence at any trial.

The indictment was lodged to call for trial at a sitting of the court on 17 May 1999 with a first diet on 3 May 1999. At the calling on 3 May both accused pled not guilty. On the motion of the solicitor for the accused Sommerville the court, in terms of section 71(7) of the 1995 Act, postponed the trial to the sitting of the court on 21 June 1999. A further first diet was fixed for 7 June 1999. On 7 June 1999 the first diet was adjourned until 17 June.

On 17 June each of the accused gave notice, in terms of Rule 40.2 of the Act of Adjournal (Criminal Procedure Rules) 1996 (as amended by the Act of Adjournal (Devolution Issues) Rules 1998), of his intention to raise a devolution issue. That issue was specified, as required by Rule 40.6, in Notices in the Form 40.2A which the Act of Adjournal prescribes. Each had been intimated to the Lord Advocate and the Advocate General and the other parties to the proceedings as Rule 40.2.(1) prescribes. On the motion of the solicitors for both accused, the trial was postponed until the sitting of 19 July and consideration of the Minutes was continued to what I assume was a further first diet on 1 July. At that diet it seems to have been confirmed that no notice in terms of Rule 40.2.(3) had been given by the Advocate General that she wished to become a party to the proceedings. Clearly there was insufficient time to hear argument on the Minutes that day and so the first diet and further consideration of them was again adjourned to 12 July 1999. The indictment and Minutes called before me that day. I heard a brief argument but, on the joint motion of all parties, adjourned the first diet, and further consideration of the Minutes, until 12 July to allow further time for preparation; but also to await a possible decision of the High Court in proceedings in that court the following day where it appeared that a very similar possible devolution issue was to be argued. Suffice to say that when the indictment and Minute called before me again on 12 July the proceedings in the High Court had not been heard. Parties were agreed that there was no certainty that argument would have been heard or any decision issued in the High Court proceedings before the postponed trial diet on 19 July and so there was little point in awaiting the conclusion of these proceedings. I heard a full argument in respect of the issues which the Minutes sought to raise.

I mention in passing that the notice which the Minutes contain had not been given not later than 7 days after the service of the indictment as Rule 49.2.(1) prescribes. The minute of proceedings does not record if any consideration was given to this at the hearing on 17 June. No point was made of it by any party in the hearings before me. Rule 40.5.(1) is in the following terms

Although I was not specifically addressed on the point I should record that I allowed the matter to proceed notwithstanding the failure to observe the terms of Rule 40.2(1). The circumstances were somewhat special. The indictment had been served before the coming into force of Rule 40 on 6 May 1999 and so the issue could not have been raised before then according to the procedures and within the time limit laid down. Section 57(2) of the Scotland Act 1998, which was said to be the basis for the Minutes, did not come into force until 6 May 1999. The Lord Advocate, whose act, in seeking to rely on the evidence, was challenged as incompetent, did not become a member of the Scottish Executive until 20 May 1999. All that seemed to me to constitute sufficient cause as required by Rule 40.5.(1) and, as I say, no issue was made of the matter by the Crown.

The evidence which the accused sought to have ruled as inadmissible consisted of statements made by each of them to police officers following their detention in terms of section 14 of the 1995 Act. These are apparently to be found in production nos. 6 and 12 on the list of productions (two transcripts of the interviews with the police officers) and in label production nos. 1 to 4 (two audio and two video tapes of these interviews). I did not see the transcripts or hear or see the tapes in the course of the argument before me. Nor was I advised of the detail of their contents. The Minutes each aver that "The said interview contains material which is decisive for the prospects of the Minuter's defence in the forthcoming trial." In his submission to me Mr. Dugan, who appeared for McCann, described the interview of his client as containing a "mixed statement". Mr. Whyte, who appeared for Sommerville, indicated that what was contained in the statement which his client had made could support an inference of his guilt. The Crown did not take issue with either of these descriptions. So clearly the evidence which it was sought to have ruled inadmissible was, at least to some extent, incriminating.

Likewise there was no dispute about what was averred in the Minutes about the circumstances in which the interviews had taken place and the statements were made. During the argument the Crown expanded on these circumstances and no exception was taken to the description given. McCann was detained by police officers at 10.30 hours on 21 August 1998 in terms of section 14 of the 1995 Act. He was taken to Bathgate police station. There, at 10.51 hours, he was advised of his entitlement, in terms of section 15(1)(b) of the 1995 Act, to have intimation of his detention sent to a solicitor. He declined this opportunity. He was not advised or told that he could have the services of a solicitor present before or while he was being interviewed. He was then interviewed by police officers for 26 minutes. At the start of the interview, and on several occasions during it, he was cautioned that he did not require to say anything in answer to any question but if he did it would be recorded or noted and might be used in evidence against him. He confirmed that he understood these cautions. At 17.01 hours he was arrested. He was informed of his rights in terms of section 17(1) of the 1995 Act. He declined the opportunity to have his arrest intimated to a solicitor.

Sommerville was detained at 10.30 hours on 21 August 1998 and taken to Bathgate police station. There, at 11.53 hours, he was also advised of his entitlement, in terms of section 15(1)(b), to have intimation of his detention sent to a solicitor. He wished this done and such intimation was given at 12.05 hours. Like McCann he was not advised or told that he could have the services of a solicitor present before or while he was being interviewed. He was then interviewed by police officers for 27 minutes. At the start of the interview, and on several occasions during it, he was cautioned that he did not require to say anything in answer to any question but if he did it would be recorded or noted and might be used in evidence against him. He confirmed that he understood these cautions. At 16.59 hours he was arrested. He was told of his rights in terms of section 17(1). He declined the opportunity to have his arrest intimated to a solicitor.

The accused McCann is 18 and at the time of his detention and interview was 17. The accused Sommerville is 23 and at the time of his detention and interview was 22. It was not submitted that anything in particular turned on the fact of these ages.

Both Minutes aver the statutory basis on which they are raised. Section 57 of the Scotland Act 1988 provides

The Lord Advocate is, in terms of section 44 of that Act, a member of the Scottish Executive.

The Convention referred to is the Convention for the Protection of Human Rights and Fundamental Freedoms which the Human Rights Act 1998 seeks give effect to in Scots law. "The Convention rights" are defined in section 126 of the Scotland Act and have the same meaning as in the Human Rights Act where section 1(1) states inter alia

Article 6, with which the Minutes are concerned, is to be found in Schedule 1 of the Human Rights Act and is in the following terms

Although the Human Rights Act is not yet in force section 129(2) of the Scotland Act provides

Schedule 6 of the Scotland Act deals with "devolution issues" which, it is said, the Minutes before me raise. Paragraph 1(d) of the Schedule defines such a "devolution issue" as, inter alia,

With one important exception, to which I shall return, the submissions which I heard on behalf of both accused were in identical terms. Mr. Whyte on behalf of Sommerville adopted what was said by Mr. Dugan for McCann. So I will not set out separately the arguments they presented. In essence Mr. Dugan's argument was that when McCann was interviewed by the police and made the incriminating remarks contained in his statement there was no solicitor present. He had not been advised by the police before he made the statement that he could have a solicitor present, if he wished, either before or during the interview. The statement had not been fairly obtained. Its use as evidence at the trial would lead to the denial of a fair hearing for the purposes of Article 6. That would be incompatible with the accused's Convention rights.

Mr. Dugan accepted that for paragraph 1(d) of Schedule 6 or section 57(2) to apply there had to be a purported or proposed exercise of a function by or an act of a member of the Scottish Executive which was incompatible with a Convention right. He did not seek to argue that the relevant function or act in the present case was that of the police officers in not advising the accused that he could have the services of a solicitor present before or during the interview. His argument was that the Lord Advocate had brought an indictment based on the evidence contained in the statement made by the accused. He had intimated, in the list of productions, that he intended or proposed to rely on that statement as evidence against the accused at his trial. The bringing of the indictment and the attempt or intention to rely on the evidence obtained at the interview was the purported or proposed exercise of a function of the Lord Advocate, as a member of the Scottish Executive, in terms of paragraph 1(d) of Schedule 6. It was also an act of the Lord Advocate, in terms of section 52(2). In either case it was incompatible with the accused's Convention rights in that the accused would not receive the fair trial to which he was entitled in terms of Article 6 of the Convention. That incompatibility made it incompetent for the Lord Advocate to rely on the evidence in the statement. Accordingly it was inadmissible as evidence and I should so rule at this preliminary stage.

In support of his contention that reliance evidence obtained at an interview before which the accused had not been advised that he could have the services of a solicitor present would lead to an unfair trial, Mr. Dugan referred to Murray v The United Kingdom 1996 22 EHHR 29. It was said that this established that Article 6 applied even at the stage of the preliminary investigations into an offence by the police; and that paragraph 1 of Article 6, in conjunction with paragraph 3(c), normally requires the accused to have access to a lawyer at the initial stages of a police investigation. In Murray the reliance, by the trial court, on evidence which came from an interview by police where the accused had not been advised of his right to consult a solicitor was held to have contravened the accused's right to a fair trial. The reliance on such evidence in the present case would render the trial unfair. The intention to rely on it was incompatible with Article 6 and so incompetent. The evidence should be ruled to be inadmissible.

I asked Mr. Dugan whether the relevant act of the Lord Advocate for the purposes of section 57(2) was the bringing of the indictment based on the evidence of the statement, the placing of the tapes and transcripts on the list of productions with the intention of adducing that evidence or the actual adducing of the evidence at the trial. His answer was somewhat elliptical but in the end of the day seemed to be that the Lord Advocate's act was the indicting of the accused relying on the evidence in the statement.

Mr. Whyte, in addition to adopting what Mr. Dugan had said, submitted that the bringing of the indictment by the Lord Advocate was the act in terms of section 57(2) which was incompatible with the accused's right to a fair trial. In addition, the defence were entitled to assume and the court was entitled hold, that the Lord Advocate intended to adduce the evidence of the statement. Otherwise why list it on the list of productions. That too was an act incompatible with the right to a fair trial. Both were incompetent for the reasons I had heard and I should rule at this stage that the evidence which it was intended to lead as a result was inadmissible.

In the course of the argument reference was made to a very recent decision of Sheriff Murphy at Falkirk where a similar point had arisen in relation to a summary trial. Although I was told that a similar Minute had been refused for one accused in that case and a Minute for a co-accused had been continued to the trial diet, on the basis that the question was truly one of admissibility of evidence, no written reasons had been given.

The argument advanced by Mr. Robertson, the Procurator Fiscal Depute, was twofold. Firstly there was no devolution issue raised by the Minutes. Whether the supposed act in terms of section 57(2) was the intention to adduce the evidence of the statements which the placing of the tapes and transcripts on the list of productions constituted or the actual leading of the evidence at the trial, neither was an "act" in terms of the section. What was contemplated by section 57 was an act of an administrative nature of the sort generally amenable to judicial review, such as the exercise of the functions referred to in paragraph 1(d) of Schedule 6. This might include the decision to proceed or not to proceed with a prosecution against a person but not the question of the leading of evidence. That was neither an administrative act nor the sort of issue which was amenable to judicial review. It could appropriately be determined by the trial judge if the issue was raised at the trial. It was not intended by Parliament that trials should be interrupted by devolution issues when the trial judge can resolve them. In Colozza v Italy 1985 7 EHRR 524 the Court had commented (para.29) that the judicial process should not be paralysed.

The phrase "or any other act" in section 57(2) had to be looked at in its context and construed subject to the eiusdem generis rule. It should have the same character as making subordinate legislation. Such acts were therefore more substantial than the mere pleading of evidence. They should be acts which have some determinative effect. The role of the Advocate General was illustrative of the sorts of acts that section 57 was concerned with. It related to the compatibility of acts of public authorities and not with matters routinely arising in legal proceedings. The acts concerned had to have a constitutional or vires implication. If the Scotland Act had intended that "any act" of the prosecuting authority should be covered by section 57 the section could easily have said so rather than express it as it did.

Secondly the mere act of leading evidence could not be incompatible with the Convention right to a fair trial. In Asch v Austria 1993 15 EHRR 597 the court had said that rules of evidence are a matter of national law. At para. 26 the Court commented

The question of whether a trial was fair had to be judged as a whole and so with hindsight. The issue is always "Was there a fair trial?" What the Minutes sought to do was to impose, in advance of the trial, absolute requirements about the evidence which are neither contained in Article 6 of The Convention or in the Scotland Act nor which form part of the law of Scotland. Indeed the right of the police to detain is expressly sanctioned by primary legislation (under section 14 of the 1995 Act) which lays down the rights of an accused when detained. This provided no right to the attendance of a solicitor after detention and before any interview. There was no specific right in Article 6 to be informed of any right to the services of a lawyer.

In any event the act of adducing evidence was simply a preliminary to another act - the decision of the court or the jury. Mr. Robertson referred again to the comments of the Court in Asch at para. 26. It was the decision of the court on the question of the admissibility of evidence which determined if the accused had received a fair trial. Whether there had been a breach of Article 6 would depend on whether the way in which the proceedings had been conducted, including the way in which evidence had been taken account of, was fair. Accordingly the issue of whether evidence of the interview was admissible was one for Scots law, as the national law, to determine. The question of the need for intimation to an accused of his right to legal assistance and the presence of a solicitor at a police interview had been considered in H M Advocate v Cunningham 1939 JC 61 and H M Advocate v Fox 1947 JC 30. While the desirability of such intimation had been affirmed it was not part of Scots law that a statement made to police officers in circumstances where the accused had not been told of his right to legal advice before making any statement was inadmissible. The question was one of fairness and that was almost invariably a matter of fact for the jury to determine.

The decisions of the European Court of Human Rights did not detract from these cases. The fact that a solicitor was not present, or that an accused was not advised that he was entitled to have one present, was simply another factor which the jury could, together with any other circumstances, consider when determining whether any evidence in the statement had been fairly obtained. In particular the decision in Murray, if binding or persuasive, could be distinguished from the facts in the present case. There the issue of fairness revolved around the consequences which flowed from the silence of the accused at the police interview. He had not been advised before that interview that he was entitled to access to a solicitor. But the relevant law of Northern Ireland allowed the court to draw corroborative and criminative inferences from that silence. That was very different from the law of Scotland where there was a right to silence and where any silence could not be used by the Crown as supporting the sufficiency of their case. It might, in certain circumstances, and subject to appropriate direction of the jury, go to the view which they formed of the accuseds' credibility. That was very different from the situation in Murray where the decision of the accused either to speak or remain silent could be evidence against him. So Murray was not supportive of any absolute right to access to a solicitor before or during a police interview. It was a case which turned on its own facts. The true ratio of Murray, in relation to the question of access to a solicitor, ( as seen in the Opinion of the Commission at para. 58 on page 44 and paras. 67 to 73 at pages 47 and 48 and in the Judgment of the Court at para. 66 on page 67) related to the denial of access to a lawyer in circumstances where adverse inferences could be drawn from the silence of the accused. The reliance on that evidence in these circumstances, but only these circumstances, was unfair and incompatible with the accused's right to a fair trial.

In Soering v The United Kingdom 1989 11 EHRR 439 the Court, when considering how Convention rights should be interpreted, had said (para. 89)

The same principles were applied by Scots law in applying the test of fairness when considering whether any statement made by an accused should be admitted as evidence against him. In Miln v Cullen1967 JC 21 the Lord Justice Clerk had said

That test of fairness would be applied at the trial in the present case, either by the presiding judge, or by the jury subject to his direction. It could not be said that the adducing of evidence which was subject to that test infringed the right to a fair trial which Article 6 guaranteed.

Mr. Robertson's response to my question about whether the relevant act was the bringing of the indictment, the placing of the tapes and transcripts on the list of productions with the intention of adducing that evidence or the actual adducing of the evidence at the trial was that, in certain circumstances, the bringing of the indictment could be such an act but the intent to adduce or the adducing of evidence could not. He made reference to an unreported Opinion of Lord Kingarth (undated but relating to a hearing before him on 3 June 1999) in the case of H M Advocate v William Maxwell Little. Lord Kingarth had held that there had elapsed, in apparent infringement of the accused's rights under Article 6(1), an unreasonable time from the date when he was charged with some of the offences on the indictment. For the Lord Advocate to proceed after such an unreasonable time would be for him to act in a way incompatible with the accused's Convention right under Article 6 to a hearing within a reasonable time. He had, by virtue of section 57(2), no power to do this and a plea in bar of trial was sustained. This underlined the distinction between the act of bringing a prosecution and the adducing of evidence. Bringing a prosecution was to do with the exercise of a function. The adducing of evidence was an evidential matter for the national court to determine according to the national law. The fairness of the hearing was something which should be looked at, as a whole, with hindsight.

Mr. Dugan pointed to the decision in Little where the bringing of the indictment by the Lord Advocate had been ruled as incompatible with Article 6 and the accused's right to a fair trial and so incompetent . He submitted that the same applied to what the Lord Advocate had done here. Section 57(2) had to be read together with section 57(3) (which was concerned solely with certain acts of the Lord Advocate which were excepted from the application of section57(2)). Those excepted acts included "prosecuting any offence" and this pointed to the nature of the acts covered by section 57(2) which must include the bringing of indictments and the adducing of evidence in the prosecutions brought.

Little also established that a matter such as the inadmissibility of evidence which was incompatible with Article 6 could be determined in advance of the trial. Rule 40 simply laid down procedures about intimation. That such a decision might be taken in advance of the trial was clearly contemplated in Rule 40.7.(1)(c) which provided for the continuation of proceedings where a devolution issue was referred to the High Court.

Mr. Dugan accepted that Murray had to be viewed in light of its own facts but he submitted that the judgment had a wider application. He referred in particular to the Opinion of the Commission at para.69 on pages 47-48 and to passages in the concurring and dissenting Opinions of some of the Commissioners on pages 50, 54, 56 and 58. The important element of unfairness in Murray was the failure to advise him of his right to legal advice before he made any decision about whether to stay silent or not. While Scots law did not, in general, allow the silence of an accused to be criminative or corroborative of guilt there was still a possible consequence for the accused. If he gave evidence at his trial he might be asked why any explanation which he gave had not been mentioned to the police. That could affect his credibility and so the fairness of his trial.

Mr. Dugan emphasised that in considering the question of whether the accused could have a fair trial the court now had to have regard to the European cases. (He did not submit that these were binding on me). While Scots lawyers were accustomed to think of a trial starting with the giving of evidence it was clear from Murray (paragraph 2 of the case summary on page 30 and paras. 66 to 68 of the Judgment on page 67) that, for the purposes of considering the fairness of the proceedings, the court can look at the initial stages of interrogation.

The Minutes lodged by both accused give notice of their intention to raise a "devolution issue". So the initial question is whether such an issue exists for determination. Devolution issues are defined in Paragraph 1 of Schedule 6 and the argument before me was restricted to paragraph 1(d). In the Minutes the devolution issue is said to be that "by seeking to rely on the said interview, which was obtained by the police in a manner which was incompatible with the Accused's Convention Rights, the Lord Advocate is acting in a manner which is incompatible with the Accused's Convention Rights." In the argument before me that issue was broadened to include the actings of the Lord Advocate both in the bringing of the indictment based on that evidence and the proposed or actual adducing of that evidence at the trial. Neither was conceded by the Crown to give rise to a devolution issue.

In Little the existence of such an issue was not the subject of dispute. Lord Kingarth records (page 5) that it was agreed that the minute before him gave rise to

Mr. Robertson conceded, on the basis of Little, that the bringing of an indictment could, in certain circumstances, give rise to a devolution issue. It did not in the circumstances of the present case. I agree with that.

Paragraph 1(d) of Schedule 6 is concerned with a purported or proposed exercise of a function by a member of the Scottish executive such as the Lord Advocate. "Function" is not defined in the Scotland Act save in section 126(1) where "functions" are stated to include powers and duties. Sections 52 to 58 of the Act are concerned with Ministerial Functions. Section 57 must be read in that context. Clearly one of the functions of the Lord Advocate is the bringing of a prosecution or, to use the language of section 57(3)(a) "prosecuting any offence". In Little no prosecution had been brought in respect of certain allegations of sexual abuse until 11 years and 1 month after the accused had been charged by the police. It is an example of where the act of bringing (or to be strictly accurate, seeking to continue with) a prosecution contravened Article 6(1) in that Mr. Little had not received a hearing within a reasonable time. The issue accordingly was one of the competence of the prosecution on the narrow question of whether there had been a hearing within a reasonable time. It was not (and this is clear at page 6 of Lord Kingarth's opinion) that Mr. Little would not receive a fair trial or that his ability to defend himself had been substantially prejudiced. In Little the accused's position on the separate issue of oppression was specifically reserved (page 7).

The right to a hearing within a reasonable time is specifically recognised in Article 6(1). Scots law recognises the possible inherent unfairness of a hearing which does not take place within a reasonable time in our remedy of a plea in bar of trial based on oppression caused by delay. In the present case it is hard to see how the bringing of a prosecution can remove or prejudice the accuseds' entitlement to a fair hearing unless the hearing itself is likely to be inherently unfair on some other basis. It was not submitted that the likely procedure in the accuseds' trial was likely to be unfair. Indeed it is clear from that the opposite would be the case so far as the issue of the admissibility of the statements is concerned. The test to be applied by the court (whether the presiding judge or the jury) is one of fairness (cf. Miln v Cullen) - a test which seems to be in very similar terms, or certainly expressed in very similar language, to the test applied by the European Court in assessing whether the trial itself has been fair (cf. Soering v The United Kingdom). So, while the bringing of the indictment is an act of the Lord Advocate in terms of section 57(2), in exercise of one of his functions within the meaning of paragraph 1(d) of Schedule 6, it is not, in my opinion, an act incompatible with the right of the accused, in terms of paragraph 1 of Article 6 of the Convention, to a fair hearing. Nor is it incompatible with their right to defend themselves in terms of paragraph 3 (c) of Article 6. It is accordingly not an act which the Lord Advocate has no power to do in terms of section 57(2).

Regarding the adducing or proposed adducing of evidence of the challenged statements at the trial, that does not, in my opinion, give rise to a devolution issue. It is not a purported or proposed exercise of a function in terms of paragraph 1(d) of Schedule 6; neither is it an act in terms of section 57(2). In any event it is not incompatible with any Convention right in Article 6.

Not everything that is done by or on behalf of the Lord Advocate will necessarily be a purported or proposed exercise of a function in terms of paragraph 1(d) of Schedule 6. As I observe above, the nature of such functions is to be found in the group of sections in Part II of the Scotland Act headed "Ministerial Functions." Section 52 deals with statutory functions; section 53 with functions exercised under the royal prerogative, conferred by prerogative instrument or by "pre-commencement enactments", which include Acts of Parliament and subordinate legislation. Section 54 is concerned with the exercise of functions outwith devolved competence ; section 55 with the exercise of functions by one Minister of the Crown with the consent of another Minister of the Crown. Section 56 specifies certain functions which, despite their transfer to Scottish Ministers, continue to be exercisable by Ministers of the Crown. It is difficult to see that the leading of evidence at a trial is of the same character as the examples of such functions detailed in sub-sections (1)(a) to (i) of section 56. No doubt the proper exercise of many of the functions of members of the Scottish Executive will involve them in seeking to raise or defend actions in the courts. The raising or defending of such actions will not always be the same as the exercise of the function but often merely ancillary to it. So, although the prosecuting of offences may be one of the Lord Advocate's functions, the adducing of evidence in such a prosecution is truly procedural and ancillary to it. For the same reasons, and because of the context in which the phrase appears in section 57(2), "any other act" does not include something which is truly procedural.

If I am mistaken about whether the adducing or the proposal to adduce evidence of the challenged statements at the trial is the exercise of a function in terms of paragraph 1(d) of Schedule 6, or an act in terms of section 57(2), the question would still remain whether it was incompatible with the rights of the accused to a fair hearing in terms of paragraph 1 of Article 6, or to defend themselves in terms of paragraph 3 (c) of Article 6. Only then would the Lord Advocate's leading of the evidence be incompetent because section 57(2) gave him no power to do so. It was not suggested in argument that, in Scots law, where the prosecutor sought to lead evidence which might be inadmissible because it had been unfairly obtained, the trial itself was or would be unfair. The right under paragraph 1 of Article 6, on which the accused found, is the right to a fair hearing. Scots law seeks to provide such a fair hearing by, inter alia, testing the admissibility of the evidence of statements made by accused persons by asking whether the statement was fairly obtained. That test is not a function or act of the Lord Advocate. It is not performed by him. If a statement which is incriminating has been unfairly obtained it should and will be excluded as evidence by the decision of the court. Miln v Cullen is one example of where the test of fairness has been articulated and applied by the Scottish courts in that context. That procedure seems to be in accord with the approach of the Court in Asch that

In Murray the question of the fairness of the hearing was considered after the hearing had taken place. That was a necessary consequence of the fact that the Convention rights had not been incorporated as part of the domestic law of Northern Ireland and, accordingly, all the available domestic remedies, including an appeal against the conviction, had to be exhausted before the European Court of Human Rights could consider whether any rights in terms of the Convention had been breached. But Murray seems to show that, in considering the question of the fairness of the hearing, the admission of the silence of the accused, as evidence against him, was intricately linked to the effect of that admission on the decision of the court. At para. 63 of its Opinion the Court states

It seems therefore that, in relation to the interpretation of the Convention, the question of the admissibility of evidence is one for the national courts; and, in relation to the question of the fairness of the hearing, the matter should be determined in the light of the entirety of the proceedings. It is difficult to see that the issue of the fairness of the hearing, where that depends on a question of admissibility of evidence and the weight which the court may place on it, can arise before that question has been determined and such weight has been measured. For these reasons I conclude that the intention to adduce evidence of the statements, which is implicit in their inclusion of the list of productions, or even the actual adducing of that evidence at the trial, is not incompatible with the accuseds' rights in terms of Article 6 either to a fair trial or to defend themselves. Accordingly it is not an act which the lord Advocate has no power to do in terms of section 57(2).

For completeness I should record that it was not argued that the failure of the police to advise the accused of any right to the assistance of a solicitor before their interview, in itself, gave rise to a devolution issue in terms of paragraph 1(e) of Schedule 6.

What is sought in the Minutes is a ruling that evidence of the statements is inadmissible at any trial. For the reasons set out above I refuse so to rule but only on the basis that no devolution issue arises. Even if such an issue does arise, the bringing of the indictment or the leading of such evidence is not incompatible with any right of the accused to a fair trial or to defend themselves in terms of Article 6. There is no Act of the Lord Advocate which is incompetent in terms of section 57(2). That decision leaves entirely open, for subsequent decision at the trial, any other question of the admissibility of evidence of the statements and whether they were fairly obtained.

I would wish to record my thanks to Mr. Robertson, Mr. Dugan and Mr. Whyte for the very full arguments which they presented on these novel issues which are not without difficulty.

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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> HER MAJESTY'S ADVOCATE v. LEE JOHN McCANN and WILLIAM SOMERVILLE [1999] ScotSC 21 (19th July, 1999) URL: http://www.bailii.org/scot/cases/ScotSC/1999/21.html Cite as: [1999] ScotSC 21

Scottish Sheriff Court Decisions

HER MAJESTY'S ADVOCATE v. LEE JOHN McCANN and WILLIAM SOMERVILLE [1999] ScotSC 21 (19th July, 1999)