APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Clarke Lord Menzies	[2013] HCJAC 29 Appeal No: XC111/012   OPINION OF THE COURT   delivered by LORD CARLOWAY   in   APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   MATTHEW McCANN Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

 

Act: Shead; John Pryde & Co. SSC (for Bell Russell & Co., Airdrie)

Alt: AF Stewart QC AD; Crown Agent

4 May 2012

 

General Background

 

[1] The appellant is charged on indictment at Airdrie Sheriff Court with an assault on, and robbery of, a person on 13 November 2010 at an address in Sykeside Street, whilst on bail from two orders dated 8 June and 12 November 2010 from the same court. There is an associated breach of curfew charge.

[2] At a continued first diet on 7 February 2012, the appellant was allowed to lodge a preliminary issue minute and to raise an associated devolution issue. The minute takes an objection to the admissibility of evidence of the appellant's interview with the police at about 3 pm on 27 November 2010. The ground for the objection is that:

"the [appellant's] decision to waive his right to a consultation with a solicitor prior to being interviewed was not made on an informed basis and denies him the right to a fair trial".

 

The ground is accompanied by a narrative that: (a) the appellant was 16 years and 41 days old at the time of his detention and interview; (b) he was under the influence of valium; and (c) there was no financial provision in place to allow solicitors to attend interviews (or, in terms of the devolution minute, to be remunerated for providing advice for detained persons). The complaint about the remuneration was not pursued in the appeal.

Proceedings before the Sheriff

[3] On 13 February 2012 the sheriff heard evidence and submissions. The respondent led evidence from one of the police officers who had detained the appellant at his home and had taken him to the local police station. Upon being detained, the appellant would have been cautioned about his right not to answer any questions, other than to give his personal details. That caution would have been repeated at the charge bar of the police station, when the appellant would also have been asked, in terms of the recently introduced section 15A(2) of the Criminal Procedure (Scotland) Act 1995, if he wanted intimation of his detention sent to a solicitor. He had not wished any such intimation. The police officer testified that, at the same time, the appellant had been asked by the duty officer if he was under the influence of drink or drugs. He had replied in the negative. The appellant had then been taken through the procedure set out in the Solicitor Access Recording Form (SARF) as required in terms of section 15A(3). It is not now disputed that the appellant was advised that he could:

"have a consultation in person with a solicitor in advance of an interview".

The appellant was asked if he wanted, in the first instance, a private consultation with a solicitor by telephone. It also seems that, before the interview, he was asked again if he wanted a personal consultation with a solicitor and he again declined.

[4] At the start of the interview, the appellant was cautioned at common law that he was not bound to answer any questions but, if he did, his answers would be recorded and might be used in evidence. The appellant was asked whether he understood the caution. He was asked to explain what his understanding was. He replied that anything he said would be taped and "kept as evidence". He repeated that he was aware that he did not have to answer any questions. The officer then reminded the appellant that he had been "afforded" his rights when at the charge bar of the police station and had been asked if he had wanted a solicitor notified of his presence at the station. The appellant confirmed that he had not wanted a solicitor. He was also reminded that, separately, he had been asked if he wanted a consultation with a solicitor, either in person or by telephone, prior to the interview. The appellant confirmed that he had also declined that invitation. It was the officer's evidence that the appellant knew and understood what his rights were but that he "couldn't care less" about his actions.

[5] The appellant went on to make certain admissions relative to the assault and robbery. These admissions were detailed and contained elements of special knowledge. The appellant explained the way in which he had robbed the "Dial‑a‑Drink" person of alcohol by intimidating him with a pole and taking cigarettes and alcohol from the rear of his "long" car. He had been assisted by an accomplice but he declined to name that person as he was "no a grass". He intimated an intention to plead guilty.

[6] The appellant gave evidence. His testimony, which was generally rejected by the sheriff, was that, at the time of his detention and interview, he had been under the influence of both drink and drugs. He did not maintain that he was under any misapprehension about the nature of his rights or that he had not understood the consequences of waiving those rights. Rather, he said that he did not recall being told about his rights at all and, in particular, being asked if he wanted to speak to a solicitor. He maintained that he could not remember the terms of the interview.

[7] The sheriff held that the interview had been fairly conducted. Standing what the appellant had said at the charge bar, the sheriff rejected the appellant's evidence that he had been under the influence of drink or drugs. The sheriff concluded (report p 7) that the appellant had made a "deliberate conscious decision not to seek legal advice despite being told of his right to have it". The sheriff accepted that the appellant's waiver of his right of access to a lawyer had been "unequivocal" (p 6). It is clear that he accepted the evidence of the police officer about the repeated offers of access to a lawyer and the appellant's dismissal of the opportunities afforded to him in that regard.

Note of Appeal and Submissions

[8] In the Note of Appeal it is contended that the sheriff erred in concluding that the appellant had validly waived his right to legal advice both before and during the interview, having regard to: (i) the fact that the appellant fell to be treated as a "child" in this context; (ii) the police officer's views of his intellectual capacity; (iii) the fact that the appellant did not have access to legal advice; (iv) the fact that he had not been informed that he could seek legal advice at any time during the interview; and (v) the absence of any obvious reason why the appellant would want to waive his right.

[9] In submissions, the appellant stressed the need, in terms of his European Convention rights, for him to be regarded as a child. It was said that the sheriff had not applied his mind to that issue. It was asserted that the police officer had testified that the appellant was "not very bright" and that this meant that he was of "limited intelligence". It was for the Crown to demonstrate that there had been a valid waiver. That was difficult to achieve where the appellant was vulnerable by virtue of his age alone and no special measures had been taken by the police to address that vulnerability. It was not, however, for the appellant to state what measures ought to have been taken.

[10] In McGowan v B 2012 SCCR 109, Lord Dyson had referred (at para 62) to the European Court of Human Rights repeating a mantra that, for a waiver to be effective, it "must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance" (Salduz v Turkey (2008) 49 EHRR 19 (at para 59)). A waiver could only be valid if the consequences of the decision to waive could be foreseen by the suspect (Pischalnikov v Russia, 24 September 2009, (no 7025/04), unreported, para 77; Panovits v Cyprus, 11 December 2008, (no 4268/04) unreported, para 71). Lord Dyson (at para 67) had stated that, if there were reasonable grounds for believing that a suspect was vulnerable and did not understand in general terms that a lawyer might be able to assist him at interview, it was not enough for the police merely to ask him whether he wished the assistance of a lawyer. The suspect could not waive his right without a proper understanding of the significance of what he was doing (see also Plonka v Poland, 31 March 2009, (no 20310/02), unreported).

[11] The advocate depute contended that there was no rule of Convention jurisprudence that stipulated that a sixteen year old could not waive his right of access to a lawyer. The question was whether the suspect could reasonably understand the consequences of doing so. This question was one of fact (McGowan v B (supra) Lord Dyson at para 68). In a relatively simply case, which this was, where the suspect appeared to be intelligent and not especially vulnerable and he unequivocally and voluntarily refused the offer of a lawyer, the prosecution will usually be able to show that there has been a valid waiver (ibid at para 70). The sheriff had found in fact that the appellant had known what he was doing. The appellant had given a detailed and discriminating interview. He had given as his reason for declining the services of a lawyer that he wanted to plead guilty. The Crown had no note of any evidence to the effect that the appellant was "not very bright".

Decision

[12] Scots criminal procedure recognises the need to treat detained child suspects differently from their adult counterparts in certain limited respects. Both have a statutory right to have intimation of their detention made to a solicitor and to a reasonably named person (sections 15(1) and 15A(2)). In the case of a child, there is an additional right, vested in the child's parent or carer, to have access to the child (s 15(4)). This is regarded as desirable in order that the child can receive appropriate parental reassurance and guidance (including assistance in understanding and communication) relative to his detention and any proposed interview during that detention. Although not required in terms of the statute, it is the accepted practice of the police to permit a child access to a parent or carer in advance of, and at, any interview. A child is, however, defined in this part of the statute as a person under 16 years of age (s 15(6)). Nevertheless, if it appeared to the police that a person aged between 16 and 18 (or older) was in some way vulnerable as a result of a mental illness, personality disorder, learning difficulty or other factor, it is the accepted practice for the police to obtain the services of an "appropriate adult". The purpose of this is again to assist with communication, including the understanding of rights.

[13] Both adult and child suspects have a statutory right of access to a lawyer in terms of s 15A, but there are no additional statutory measures which apply to the child or the vulnerable suspect in the context of access to a lawyer. However, in order for the right to be effective, it is axiomatic that the suspect, whether an adult or a child, must be capable of understanding the right and the consequences of its waiver. In assessing whether an interview of a person under 18 is fair at common law, regard must, of course, be had to the person's age, maturity and any apparent vulnerability.

[14] In terms of several international instruments, as with many domestic statutes, a child is generally regarded as a person under 18 years of age (eg United Nations Convention of the Rights of the Child, 1989, article 1). Such instruments stress the need for detained child suspects to be able to express their views and for these views to be given due weight in accordance with the child's maturity and age. They emphasise also the need for an effective right of access to a lawyer and other "appropriate assistance".

[15] In European Convention terms, the right of a "child" suspect is to effective participation in the trial process, including any post detention interview. He or she must be dealt with having due regard to his or her vulnerabilities and capacities. A waiver of a right can only be accepted as valid if it is expressed in an unequivocal manner, after the authorities have taken all reasonable steps to ensure that the suspect is fully aware of his rights of defence and can appreciate, as far as possible, the consequences of his or her conduct (Panovits v Cyprus (supra) paras 67 and 68; see also Adamkiewicz v Poland, 2 March 2010, (no 54729/00) unreported. But there is no prescribed additional step which the police must take in all cases where a person is under 18, or indeed 16, years of age.

[16] As was emphasised by Lord Dyson in McGowan v B (supra at para 68) the issue of whether a suspect, whether child or adult, has unequivocally waived his right of access to a lawyer is essentially one of fact. As such, it is primarily one for a court of first instance to resolve on the particular facts and circumstances as revealed by the evidence. There is no rule of law, or Convention right, which requires a 16 year old to have access to a lawyer, no matter what his expressed views on that might be. If he is apparently capable of making an informed decision on whether or not to consult a solicitor, it is for him to make that decision and that decision ought to be respected.

[17] Despite the assertion that there had been testimony from the police officer that the appellant was "not very bright", there is no evidential basis for concluding that this appellant lacked the intellectual capacity or maturity in the circumstances to make an informed decision. Neither the original Minute nor the Note of Appeal make any reference to the appellant being of low intelligence and the sheriff's report contains no mention of there being either evidence to that effect or a submission based upon such a premise. The principal contention made to the sheriff was that the appellant's age, coupled with his being under the influence of drink or drugs, meant that he did not in fact know what he was doing. That contention was firmly rejected by the sheriff who found, to the contrary, that the appellant had understood what his rights were and had made an unequivocal waiver of them. In this context, it is significant that it was not contended either before the sheriff or at the appeal that this appellant had required the assistance of a parent or carer in order to ensure his understanding of his rights or the consequences of their waiver.

[18] This court is unable to find any fault in the sheriff's reasoning, which led him to his findings in fact. The sheriff heard the evidence of an experienced police officer of what the appellant's attitude had been in the police station. The appellant had understood his rights but had been content to waive them in favour of an admission of his own responsibility, to be followed by a plea of guilty. The sheriff also had the benefit of seeing the content of the interview, which is both lucid and detailed, and assessing the appellant as he gave evidence. If it had appeared that the appellant was in some way vulnerable, in addition to being only 16, the sheriff may have been bound to reach a different view on the appellant's ability to understand his rights and, in particular, the consequences of his waiver of the right of access to a lawyer. On the material before him, however, and following Lord Dyson's guidance (at para 70), the sheriff was left with a situation in which the police were dealing with a simple allegation of the recent robbery of the "Dial‑a‑Drink" person. The appellant appeared to be of normal intelligence and "not especially vulnerable". His right of access to a lawyer had been explained to him on three occasions in simple language. There was no reason to question the appellant's understanding of the right or to suppose that he did not understand the consequences of waiving that right. In those circumstances, the sheriff was entitled to hold that the respondent had established a valid waiver on the part of the appellant. The appeal must therefore be refused.