FOURTH SECTION
Application no. 74457/12
Raymond William JUDE
against the United Kingdom
lodged on 12 November 2012
STATEMENT OF FACTS

1.  The applicant, Mr Raymond William Jude, is an British national, who was born in 1967. He is currently detained at HMP Edinburgh.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the applicant, may be summarised as follows.
3.  On 27 May 2008 the applicant appeared for trial at the High Court of Justiciary at Aberdeen. He was charged inter alia with one charge of indecent assault and two of attempted rape. The victim in each charge was the applicant’s twenty-one year old stepdaughter, X, with whom, the prosecution alleged, he had become sexually obsessed. The first of the two attempted rapes was alleged by the prosecution to have taken place in the applicant’s car on a road near Tranent, East Lothian. The second attempted rape was alleged to have taken place in a park near their home. The charge of indecent assault alleged a series of inappropriate and sexually obsessive incidents over the five-year period prior to the attempted rapes, including sexual assaults, and inappropriate and indecent text messages.
4.  As part of their case, the prosecution relied on the applicant’s police interviews, which had taken place without the applicant having access to a lawyer either prior to or during the interviews. In those interviews, the applicant had denied any improper conduct. He did, however, admit to having worn leggings belonging to X (but said they were to protect him from the cold while working) and he accepted that her torn underwear was in his car (but said that he had openly taken the underwear to use as a rag in the course of his work as a carpenter). He also accepted that, while he and X had been in his car on the road near Tranent, he had slapped her on the backside, although he said this was because his stepdaughter had suddenly and inappropriately undressed and he had been outraged at her behaviour.
5.  X gave evidence over two days at trial, both in relation to the two attempted rapes and the prior indecent assault. In respect of the latter, this was to the effect that the applicant would spend time in her bedroom when his wife was asleep, that he sometimes wore her tights or leggings at work, exhibited controlling behaviour towards her, that he plagued her with indecent and threatening text messages and that he had exposed her to increasing levels of sexual activity and physical violence away from the family home. In support of X’s evidence, the prosecution called her mother, who gave evidence of repeatedly finding the applicant sitting on or in her daughter’s bed at night. There was other evidence of the X’s distress after the attempted rapes. There was also the text message evidence, evidence that the applicant had filmed X in the shower, evidence of his DNA on the inside front of X’s tights and on her socks, and the damaged underwear, the pair of leggings and two buttons, all of which had been recovered from his car.
6.  There were recognised weaknesses in the X’s evidence. These included: an absence of visible marks or injuries after the attempted rapes; her accompanying the applicant to the park, the scene of the second attempted rape, so soon after the first attempted rape; that she had flagged down and been picked up by the concerned motorist when the park was so close to her home; that damaged clothing had later turned up in places where the police had previously failed to see them; and whether the angle of the shower video and the possibility that she might have been interpreted as posing in it were inconsistent with her allegations.
7.  Although no evidence was led for the defence and the applicant himself did not give evidence, his response to the prosecution’s case was simply that none of the alleged incidents had happened, none of the offending text messages had been sent by him, the damaged underwear in his car was – as he had explained in his police interview – a rag for work, and the evidence of his stepdaughter and her mother was, from start to finish, untrustworthy and untrue. Instead, X had behaved inappropriately towards him and he had sought to fend her off. As regards the attempted rape in the park, X had behaved hysterically and taken off her clothes (just as she had on the road near Tranent) before suddenly running off. This explained why she had been found hysterical and half-clothed on a nearby road and had been picked up by a concerned motorist.
8.  On 2 June 2008, the jury unanimously convicted the applicant of all three charges.  He was acquitted of a further four charges of a similar nature after the prosecution withdrew these charges.
9.  On 20 August 2008, the applicant was sentenced to an extended sentence of eleven years’ imprisonment.
10.  On 28 August 2008 the applicant lodged a notice of intention to appeal with the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”). On 17 February 2009 the appeal was deemed to have been abandoned for failure to lodge a note of appeal in time. On 5 October 2010 the applicant lodged an application for an extension of time, which was granted. The Crown resisted the appeal inter alia on the grounds that it was time-barred by one-year time limit for bringing proceedings concerning the Convention which is contained in section 100(3B) of the Scotland Act 1998.  The Appeal Court dismissed the prosecution’s submission, but gave leave to appeal to the Supreme Court.  On 23 November 2011 the Supreme Court dismissed the prosecution’s appeal in the applicant’s case and the two other appeals which it had been joined, finding that the one-year time limit in section 100(3B) did not apply to criminal appeals (Jude v. HM Advocate 2011 UKSC 55).
11.  The applicant’s case was therefore remitted to the Appeal Court for its consideration of the merits of his grounds of appeal. Before the Appeal Court, the prosecution accepted that the applicant’s lack of access to legal representation while in police custody had been a breach of Article 6(1) and (3)(d); however, it maintained that, without the police interviews there was still sufficient evidence for conviction and no real possibility that, without the interviews, the jury would have arrived at a different verdict. Thus, the prosecution submitted, there was no reason to quash the applicant’s conviction.
12.  The Appeal Court dismissed the applicant’s appeal on 18 May 2012. It agreed with the prosecution that, in respect of all three charges, there was sufficient evidence for conviction without the applicant’s police interviews.  It further found that there was no real prospect of the jury having reaching a different verdict, not least because of the ample circumstantial evidence in the case. For instance, the applicant’s admission that he had worn X’s leggings was supported by a text message from him to X stating that he became sexually aroused when he did so. The leggings had also been found in the car. Moreover, the applicant in his police interviews had given exculpatory explanations for his behaviour, which had given grounds to challenge the X’s credibility, and which his legal representative had referred to in his address to the jury. Excluding the police interviews would have prevented the applicant from using these exculpatory explanations and would have given the jury less reason to question X’s credibility.  Finally, even with the benefit of the applicant’s account as given in his police interviews, in which he suggested that X was the instigator of any sexual conduct between them, the jury had unanimously accepted her account.
13.  On 22 June 2012 the Appeal Court refused the applicant leave to appeal to the Supreme Court.  On 9 October 2012 the Supreme Court refused the applicant permission to appeal.
B.  Relevant domestic law and practice
1.  HM Advocate v. McLean [2009] HCJAC 97
14.  At the time of the above judgment (and the time of the present applicant’s trial), sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor, but did not have the automatic right of access to a solicitor either prior to or during a police interview.
15.  Sections 14 and 15 of the 1995 Act gave legislative effect to the recommendations of the Thomson Committee on criminal procedure in Scotland. The Committee recommended the introduction of a limited or temporary form of arrest, arrest on suspicion, which should be given the separate name of “detention” (as distinct from arrest after a suspect is charged). Detention should not last longer than was necessary in the interests of justice, should be succeeded as soon as possible by either release or arrest, and should not exceed a fixed period of time at the end of which the detained person should either be released or arrested and charged. The Committee considered that while an arrestee should be entitled to an interview with a solicitor, it should be a matter of police discretion whether to allow a detainee an interview with his solicitor. In making this recommendation, the Committee noted that the purpose of interrogation of a suspect/detainee was to obtain from him such information as he might possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.
16.  The compatibility of sections 14 and 15 of the 1995 Act with this Court’s judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 was considered by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) in HM Advocate v. McLean.
17.  The Appeal Court considered that Salduz was open to interpretation. It could, on the one hand, be read as requiring that every jurisdiction have in place a system where access to a lawyer was ordinarily provided as from the first interrogation of a person, whatever safeguards there may otherwise be for a fair trial. Alternatively, the Court could have required that access to legal advice be seen against the guarantees which were otherwise in place to secure a fair trial.
18.  The Appeal Court favoured the latter interpretation. Proceeding on that basis, it was satisfied that the guarantees available under the Scottish system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution. The Appeal Court stated:
“[27]  In the first place it is important to notice that Scots law is particularly jealous to protect a person who has, in the domestic sense, been charged with a crime, that is a person who, having been cautioned that he need not respond, has had read to him by the police the charge or charges which they propose should be preferred against him. Such a person, if arrested, has the right to have a solicitor informed of what has happened and to a subsequent interview with him before his appearance in court. He may not, after caution and charge, be further questioned by the police. He may, if he chooses, make a voluntary statement but that is taken by officers not involved in the inquiry. Problems occasioned by these protections persuaded the Thomson Committee to recommend, and Parliament to endorse, a form of limited or temporary apprehension on suspicion - to which they gave the separate name of ‘detention’. A number of safeguards apply to persons in detention. Before being questioned by the police the detainee must be cautioned that he need not answer any questions put - other than certain formal particulars (section 14(10) [of the 1995 Act]) - but that, if he does answer, his answers will be recorded and may be used in evidence. In all serious cases the interview is tape recorded - and in some cases, as in the present case, video recorded - with the tape or tapes sealed at the conclusion of the interview. While the police may question the detainee, and may do so persistently and robustly, they are not entitled to coerce him or otherwise to treat him unfairly. If they do so, that will render any incriminating answers which he gives inadmissible in evidence at his subsequent trial (Lord Advocate’s Reference (No.1 of 1983) 1984 JC 52). Challenges to admissibility on such grounds may be made either in advance of the trial or in its course. The accused is entitled to give evidence as to the circumstances of the questioning during detention without being required to answer any questions as to the substance of the charge or charges; thus his right to silence at his trial is protected. The onus of proving that any admission made by the accused in the course of detention was fairly elicited is on the prosecution (Thompson v Crowe 2000 JC 173). The trial judge must forthwith rule on the challenge to admissibility by either excluding or admitting the answers in evidence. (It is noted that in Salduz the Izmir State Security Court did not ‘take a stance’ on the admissibility of the applicant’s statements - para 57). Even where the judge admits the answers, the jury in solemn cases is entitled to take into account the circumstances in which any incriminating answers were given and, if they think fit, to give no or little weight to such answers. As explained in the caution, a suspect is entitled to decline to answer any of the questions (other than the formal questions) put by the police. That right when exercised is respected. The jury is expressly directed at the trial that it may not draw any inference adverse to the accused from any declinature to answer police questions. Even if the accused makes an admission during detention which is held to have been freely and voluntarily given in fair circumstances, he cannot be convicted on the basis of that admission alone. Scots law requires that there be corroboration by independent evidence (Morton v HM Advocate 1938 JC 50; Sinclair v Clark 1962 JC 57). A person may not be detained for more than six hours; it may be less (section 14(2) [of the 1995 Act]) - as it was in this case. He must be informed immediately upon the termination of his detention that his detention has been terminated (section 14(2)). He may not be further detained on the same grounds or on any ground arising out of the same circumstances (section 14(3)). Although a detained person has no right to have access to a lawyer before being questioned, he is entitled to have the fact of his detention and of the place where he is detained intimated without unreasonable delay to a solicitor and to one other person reasonably named by him (section 15(1)). Additionally, the police may, if they think fit, allow a lawyer or other person to be present during the detention. This discretion is likely to be exercised where the detainee is perceived to be a vulnerable person.”
19.  The Appeal Court added that, if it was wrong in its interpretation of Salduz, it had to consider the effect of that assumption. Ordinarily, as a result of the obligation to take account of Strasbourg jurisprudence under the Human Rights Act 1998, United Kingdom courts should not without good reason depart from the principles laid down in a carefully considered judgment of the European Court sitting as a Grand Chamber. However, there was no evidence that, in Salduz, the implications for the Scottish system had been “carefully considered” by the Grand Chamber. In those circumstances the Appeal Court was of opinion that, while the judgment in Salduz commanded great respect, it was not obliged to apply it directly in Scotland. Thus, even if Salduz amounted to the expounding of a principle that Article 6 required that access to a lawyer should be provided as from the first interrogation of a suspect by the police, the Appeal Court was satisfied that that principle could not and should not be applied without qualification in Scotland. In particular, if other safeguards to secure a fair trial of the kind which it had described were in place, there was, notwithstanding that a lawyer is not so provided, no violation of Article 6.
2.  Cadder v. HM Advocate [2010] UKSC 43
20.  Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court.
21.  On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder’s case should be remitted to the Appeal Court for further consideration; and (iii) its ruling should not apply retroactively.
22.  On the first issue, Lord Hope found that the Appeal Court had erred in its interpretation of Salduz. The Grand Chamber’s judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it, which was what had occurred under the 1995 Act. As to whether Salduz should be followed, Lord Hope noted that the judgment had been given by a unanimous Grand Chamber, it had been repeatedly followed in subsequent cases and was now firmly established in the jurisprudence of this Court. Lord Hope also observed that the majority of those Contracting States which prior to Salduz did not afford a right of legal representation at interview (Belgium, France, the Netherlands and Ireland) had recognised that their legal systems were, in that respect, inadequate (see the decision of the Supreme Court of the Netherlands LJN Bh3079, 30 June 2009; decision no. 2010-14/22 QPC, 30 July 2010 of the Conseil Constitutionnel; and the Court of Cassation’s judgments no. 5699, 5700 and 5701, 19 October 2010). If Scotland were not to follow the example of others it would be alone in not doing so, and would find no support in England and Wales or Northern Ireland, both of which jurisdictions allowed the right of access to a lawyer.
23.  For Lord Hope there was also no room for finding that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial.
24.  Lord Rodger, concurring in judgment, stated that the many other safeguards which existed in Scots law for accused persons, and which the Appeal Court had relied upon, were “beside the point”. This Court’s reasoning in Salduz was based on the implied right of an accused person not to incriminate himself. This being so, the only safeguards in Scots law which could be relevant would be those which were designed to protect that right. The safeguards relied on by the Appeal Court, though admirable and going further than some other systems, could not, and did not, protect that right. Instead, it was clear from the recommendations of the Thomson Committee that the purpose of sections 14 and 15 of the 1995 Act was intended to give the police and prosecution an enhanced possibility of obtained incriminating admissions from the suspect which could then be deployed in evidence at his trial. The procedure provided for in those sections was, therefore, the very converse of what the Grand Chamber held to be required in Salduz. For this reason, in Lord Rodger’s view, there was “not the remotest chance” that this Court would find that, because of the other protections Scots law provided for accused persons, the Scottish system was compatible with Articles 6 §§ 1 and 3(c).
25.  On the second issue, both Lord Hope and Lord Rodger declined simply to quash Cadder’s conviction. Lord Hope found that such a course would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them (per Lord Hope at paragraph 64)
26.  On the third issue, the effect of the Supreme Court’s ruling, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re‑opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.
3.  Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010
27.  Immediately after the Cadder ruling, the above Act (“the 2010 Act) was passed by the Scottish Parliament. It amends the Criminal Procedure (Scotland) Act 1995 to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor’s professional assistance is required by the suspect. It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning. Consultation includes, for example, consultation by means of telephone. The 2010 Act also provides that a suspect must be informed of these rights.
28.  The Scottish Criminal Cases Review Commission is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred. The 2010 Act amends the provisions of the 1995 Act which give the Commission the power to refer cases to the Appeal Court. The 2010 Act directs the Commission, in determining whether or not it is in the interests of justice that a reference should be made, to have regard to the need for finality and certainty in the determination of criminal proceedings (section 194C(2)) of the 1995 Act as inserted by the 2010 Act). The 2010 Act also gives the Appeal Court the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed (section 194DA(1)). The Act provides that, in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the Appeal Court must have regard to the need for finality and certainty in the determination of criminal proceedings (section 194DA(2)).
4. “Post-Cadder” case-law
29.  The Appeal Court considered the proper approach to sections 194DA(1) and (2) in two references made by the Commission in M [R.M.M.] v. HM Advocate [2012] HCJAC 121. Each of the two references concerned cases of sexual offences where the prosecution had at trial relied on statements made by the accused in police interrogations when they had not had access to solicitors before questioning. In allowing the references to proceed the Appeal Court stated:
“An independent body specifically entrusted with considering cases of possible miscarriages of justice has decided that it is in the interests of justice that it should make these references (1995 Act, s 194C(1)). In making that decision the Commission has considered the interests of finality and certainty (s 194C(2)). Although this court has been given the power to reject a reference in language that replicates the provision applicable to the Commission (s 194DA(1), (2)), it cannot be right for us simply to duplicate the Commission’s function and give effect to our own view. In light of the impressive record of the Commission, it is unlikely that we will have cause to differ from its judgment on this point. I think that we are entitled to assume, unless the contrary is apparent, that the Commission has considered the criteria set out in section 194C and has duly made its independent and informed judgment on them. In my view, we should reject a reference only where the Commission has demonstrably failed in its task; for example, by failing to apply the statutory test at all; by ignoring relevant factors; by considering irrelevant factors; by giving inadequate reasons, or by making a decision that is perverse.”
30.  When R.M.M.’s case later came before the Appeal Court for consideration of whether the conviction should be quashed (R.M.M. v. HM Advocate [2012] HCJAC 157), it was accepted by the Crown that the leading of the evidence of the interviews conducted by the police was in breach of Article 6 and that, on that account, the evidence was inadmissible. The issue was whether, without the evidence, there would have been insufficient evidence for a conviction or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they had the interview evidence before them (see Lord Hope’s observations in Cadder, paragraph 25 above).
The Appeal Court went on to observe that, in a case such as R.M.M.’s, the appropriate starting point was an examination of the role which the evidence of the questioning of the accused played in the prosecution case, and a useful starting point in that examination might well be the extent to which that evidence was invoked in the prosecutor’s address to the jury at the conclusion of the trial. Having examined the transcript of that address, the court concluded that the police interview were clearly presented to the jury as being of major importance to the Crown case. The centrality and importance of those interviews led the court to conclude that there was a realistic possibility that, had the interviews not been before the jury, the jury might have returned a different verdict. For this reason, the Appeal Court quashed the conviction.
31.  In Mark Chamberlain-Davidson, the Commission referred a conviction for assault with intent to rape. However, it did so on grounds other than Cadder, finding that, while the “Cadder principle” had been breached (and, in the absence of the appellant’s police interviews, an acquittal would have been inevitable), it was not in the interests of justice to refer the case to the Appeal Court. It reasoned that the appellant had served his prison sentence of eighteen months and, at trial, had relied on the police interviews as part of his defence.
Applying R.M.M., the Appeal Court accepted the reference ([2012] HCJAC 120) and, notwithstanding the view of the Commission, then gave the appellant leave to lodge an additional ground of appeal based on Cadder ([2012] HCJAC 122). Having heard submissions, it then quashed the conviction finding that, without the interviews, there was insufficient evidence for conviction ([2013] HCJAC 54).
COMPLAINT
The applicant complains under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, that his trial was unfair because he was denied access to a lawyer during his detention and his statements to the police were subsequently relied on by the prosecution at trial.

QUESTION TO THE PARTIES

Has there 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 and the reliance by the prosecution on the evidence obtained during his police interview (Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Cadder v. HM Advocate [2010] UKSC 43)?