JUDGMENT
McGowan (Procurator Fiscal, Edinburgh)
(Appellant) v B (Respondent) (Scotland)
before
Lord Hope, Deputy President
Lord Brown
Lord Kerr
Lord Dyson
Lord Hamilton
JUDGMENT GIVEN ON
23 November 2011
Heard on 11 and 12 October 2011
Appellant (McGowan) Respondent (B)
Joanna Cherry QC John Scott QC
P Jonathan Brodie QC
Kenneth J Campbell QC
Douglas Fairley
Ian Bryce
(Instructed by The
Appeals Unit, Crown
Office)
(Instructed by Central
Criminal Lawyers)
Page 2
LORD HOPE
1. This is a reference of a devolution issue which has arisen in proceedings in
the Sheriff Court of Lothian and Borders at Edinburgh. It was required by the Lord
Advocate under paragraph 33 of Schedule 6 to the Scotland Act 1998. The
respondent, to whom I shall refer as “B” as his case has not yet gone to trial, has
been charged on summary complaint with housebreaking with intent to steal and
having in his possession a controlled drug contrary to section 5(2) of the Misuse of
Drugs Act 1971. He pled not guilty and was admitted to bail. A trial diet was fixed
for 10 October 2011.
2. By letter dated 1 August 2011 his solicitor gave notice of his intention to
raise a devolution issue in terms of paragraph 1 of Schedule 6 to the Scotland Act
1998. The issue was described in his Devolution Minute in these terms:
“(a) Article 6(3)(c) of the European Convention on Human Rights
provides:
‘Everyone charged with a criminal offence has the following
minimum rights:
…
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.’
(b) That in the Minuter’s case he was interviewed by the police. The
Minuter was offered legal assistance prior to the interview but
declined. This was done without recourse to a solicitor. Access to a
solicitor should be automatic when someone has been detained in
police custody.
(c) Accordingly the Minuter’s right to a fair trial under article 6 has
been breached if the Crown choose to lead evidence of the Minuter’s
police interview.”
Page 3
3. The Lord Advocate understood the propositions in para 2(b) of the Minute
to have been based on the observations of the High Court of Justiciary in Jude v
HM Advocate [2011] HCJAC 46, 2011 SLT 722. In para 34 of his opinion, with
which all the other members of the Appeal Court agreed, the Lord Justice Clerk
(Gill) said that he could not see how a person could waive his right to legal advice
when he had not had access to legal advice on the point. In view of the importance
of the question raised by this observation the Lord Advocate invited the sheriff to
refer the issue to this court, which the sheriff has now done.
The reference
4. The questions that were referred by the sheriff did not appear to focus the
issue in sufficiently precise terms. So, at the Court’s request, an amended version
was agreed between the parties. The following are the questions in their amended
form:
“(i) whether it would necessarily be incompatible with article 6(1)
and 6(3)(c) of the European Convention on Human Rights for the
Lord Advocate to lead and rely upon evidence of answers given
during a police interview of a suspect in police custody (whether
voluntarily, as a detainee under section 14 of the Criminal Procedure
(Scotland) Act 1995 or after arrest and prior to charge) who, before
being interviewed by the police:
had been informed by a police officer of his Salduz/article 6 rights of
access to legal advice; and
without having received advice from a lawyer, had stated that he did
not wish to exercise such rights.
(ii) whether it would be compatible with the respondent’s rights
under articles 6(1) and 6(3)(c) of the ECHR for the Lord Advocate,
at the trial of the respondent, to lead and rely upon evidence of
answers given by the respondent during a police interview conducted
with him between 10 and 11 July 2011 in circumstances where, prior
to such interview taking place, the respondent was informed by a
police officer of his Salduz/article 6 rights of access to legal advice
and, without having received advice from a lawyer, indicated:
● verbally to police officers prior to being interviewed;
Page 4
● in writing by signing a solicitor access recording form (‘SARF’);
and
● verbally at the start of the interview
that he did not wish to exercise such rights.”
The first question raises an issue of principle, which is focused by the word
“necessarily”. The second question is directed to the facts of this case. The
Convention issue which it raises, and to which the argument was directed, is
focused by the words “without having received advice from a lawyer”.
5. I agree with Lord Hamilton that the task for this court is to identify as best it
can the requirements which the Strasbourg court has set for the making of an
effectual waiver of Convention rights (see para 78, below). I emphasise the words
“the Strasbourg court”, as they indicate the proper limits of the jurisdiction that
was given to this court by the Scotland Act 1998. It may be, as Lord Kerr makes
clear in his judgment, that the way interviews with suspects are currently
conducted in Scotland is in need of improvement. But I do not think that this
should be done by giving a more generous scope to the Convention rights than that
which is to be found in the jurisprudence of the Strasbourg court.
6. The structure of the Scotland Act, section 57(2) of which places such a tight
fetter on the powers of the Lord Advocate as head of the system of criminal
prosecution in Scotland, is an important factor in the determination of how we
should perform our task. As Lord Rodger of Earlsferry declared in HM Advocate v
Scottish Media Newspapers Ltd 2000 SLT 331, 333, the Lord Advocate simply has
no power to move the court to grant any remedy which would be incompatible
with the European Convention on Human Rights: see also HM Advocate v Robb
2000 JC 127, 131, per Lord Penrose. This is in sharp contrast to the position under
the Human Rights Act 1998, section 8(1) of which provides that in relation to an
act of a public authority which it finds unlawful the court may grant such relief or
remedy as it considers just and appropriate. The absolute nature of the fetter which
section 57(2) imposes affects cases in the past (other than closed cases) as well as
this one, and it will affect all cases in the future. This makes it especially important
for us to avoid laying down fixed rules that may impede the prosecution of crime
in the public interest, unless they have been clearly identified as such by the court
in Strasbourg. We are, after all, dealing here with implied rights which are open, in
principle, to modification or restriction so long as this is not incompatible with the
right to a fair trial. It is not the purpose of article 6 to make it impracticable to
bring those who are accused of crime to justice: Montgomery v HM Advocate 2001
SC (PC) 1, 29, [2003] 1 AC 641, 673; Dyer v Watson 2002 SC (PC) 89, 133,
Page 5
[2004] 1 AC 379, 429 per Lord Rodger of Earlsferry. There is no treaty provision
which expressly governs the circumstances in which a Convention right may or
may not be taken to have been waived. The rules, if there are to be rules, must be
found in the judgments of that court. It should be remembered, too, that there is a
difference between an absolute rule and a guiding principle. The virtue of a
guiding principle is that its application will depend on the facts and circumstances
of each case. If that is as far as Strasbourg has taken the point on waiver, we
should be content with that. We should not try to push it further by creating a
system which is fenced in by fixed rules. A descent to that level of detail is
contrary to the approach that the court itself has adopted. The President of the
court, Sir Nicolas Bratza, said in a paper which he gave in Edinburgh in March
2011 that the Strasbourg court has been careful, in general, to leave the national
authorities to devise a more Convention-compliant system without itself imposing
specific requirements on the State: [2011] EHRLR 505, 510.
The facts
7. The respondent was detained at 2057 hrs on 10 July 2011 under section 14
of the Criminal Procedure (Scotland) Act 1995 on suspicion of housebreaking with
intent to steal. He was cautioned and made no reply. He was searched and found to
be in possession of a substance which he said was cannabis. He was then taken to a
police station, where he arrived at 2130 hrs. He was then advised that he had been
detained under section 14 and that he was under no obligation to answer any
questions other than to give his name and address, which he then did. At 2145 hrs
he was told of his rights under sections 15 and 15A of the 1995 Act, as amended
by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland)
Act 2010, section 1(4). He was told that he was entitled to have intimation of his
detention and of the place where he was being detained sent to a solicitor. In reply
he gave the name of a firm of solicitors, Central Criminal Lawyers. He was asked
whether he wished to have intimation sent to anyone else, to which he replied
“No”. He was also told that he had the right for a private consultation with a
solicitor before being questioned by the police and at any time during questioning.
He was asked whether he wished a private consultation with a solicitor before
being questioned, to which he replied “No”. These questions and replies were
noted on a pro forma detention form.
8. At 2335 hrs the following statement was read out and signed by him
immediately before the start of his interview:
“You have chosen not to have a private consultation with a solicitor.
Signing this in no way prevents you from changing your decision at
a later time.”
Page 6
His interview began at 2336 hrs on 10 July 2011. It continued until 0032 hrs on 11
July 2011. At the start of the interview he was asked whether he had been offered a
consultation with a solicitor prior to the interview. He confirmed that this was
correct. He was also asked whether it was correct that he had declined that
interview and stated that he was happy to be interviewed without a lawyer being
present or having a private consultation. He replied that this too was correct.
9. He was then questioned about the alleged housebreaking with intent to
steal, which ultimately became the first charge in the summary complaint. In the
course of that interview he made statements in relation to that matter which were
incriminating. At 0021 hrs on 11 July 2011 he was cautioned and arrested for
housebreaking with intent to steal. He made no reply. The interview then
continued in relation to the matter which ultimately became the second charge on
the summary complaint. Before he was asked any questions about it the respondent
confirmed that when he was first taken into custody he was found in possession of
a herbal substance which he stated was cannabis. He was also asked whether he
wished to consult with a solicitor before the police continued with the interview, to
which he replied “No”. He was then questioned in relation to that matter between
0024 hrs and 0032 hrs. At 0032 hrs he was cautioned and arrested for a
contravention of section 5(2) of the Misuse of Drugs Act 1971. He again made no
reply.
10. I am grateful to Lord Hamilton for the references he has made in paras 74
and 75 to the current legislation and to section 4 of the Manual of Guidance of
Solicitor Access produced by the Association of Chief Police Officers in Scotland
(“ACPOS” Manual) which was published in January 2011. They are an important
part of the background.
The issue in this case
11. At no stage either before or during the police interview did the respondent
receive advice from a lawyer on the question whether he should exercise his right
of access to a solicitor before being questioned or during the questioning. Nor was
he given an opportunity to seek legal advice on this matter before he decided
whether or not he should exercise it. The question is whether he can be taken to
have validly waived his right of access to a lawyer without having received advice
from a lawyer on this point. In other words, does article 6(1) read with article
6(3)(c) of the Convention require, as a rule, that a person must have had legal
advice before he can be taken to have waived that right? It does not say so
expressly. But, as is abundantly clear from the jurisprudence of the Strasbourg
court, the article is to be interpreted broadly by reading into it a variety of other
rights to which the accused person is entitled to give effect, in a practical way, to
the right to a fair trial: see Brown v Stott 2001 SC (HL) 43, p 74C-E; [2003] 1 AC
Page 7
681, 719 F-G. As those rights are not set out in absolute terms in the article, they
are open to modification or restriction so long as they are not incompatible with
the right to a fair trial. The ruling by the Grand Chamber in Salduz v Turkey (2008)
49 EHRR 421 illustrates how this is done. In para 55, it said:
“Against this background, the Court finds that in order for the right
to a fair trial to remain sufficiently ‘practical and effective’ 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.”
12. In Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011
SLT 1005, [2011] 1 WLR 2435 the issue which the court had to decide was
whether the right of access to a lawyer prior to police questioning which was
established in Salduz applies only to questioning which takes place when the
person has been taken into police custody. In para 25 of my judgment in Ambrose I
said:
“The domestic law test for the admissibility of the answers that were
given to the questions put by the police is whether or not there was
unfairness on the part of the police. The fact that the person did not
have access to legal advice when being questioned is a circumstance
to which the court may have regard in applying the test of fairness,
but it is no more than that. There is no rule in domestic law that says
that police questioning of a person without access to legal advice
who is suspected of an offence but is not in custody must always be
regarded as unfair. The question is whether a rule to that effect is to
be found, with a sufficient degree of clarity, in the jurisprudence of
the Strasbourg court.”
That approach to the issue was supported by the majority of the court in that case,
and I would apply the same approach to the questions raised by this reference too.
There is no rule in the domestic case law that says that a detainee cannot ever
waive his right to legal advice when he is being questioned by the police when he
has not had access to legal advice on the question whether or not he should waive
that right, and that police questioning in such circumstances must always be
regarded as unfair. The question is whether a rule to that effect is to be found, with
a sufficient degree of clarity, in the jurisprudence of the Strasbourg court.
13. Mr Scott QC for the respondent acknowledged in his written case that there
is, as yet, no clear and constant jurisprudence of the Strasbourg court that says that
Page 8
legal advice is a necessary safeguard in order to ensure that any waiver is valid. He
did not depart from that position in his oral argument, at the outset of which he
said that it was not his position that a waiver was bad simply because it was given
without legal advice, as had been indicated by the Appeal Court. He submitted that
legal advice was none the less the most effective of the possible safeguards for
ensuring that a waiver is knowing and intelligent and that, in certain
circumstances, it may be the minimum safeguard to ensure a valid waiver. His
position was that the first question in the reference should be answered in the
negative; and that we should answer the second question, which is directed to the
facts of this case, in the negative also. For the Crown, the advocate depute also
submitted that the first question should be answered in the negative. But she
submitted that the second question should be answered in the affirmative.
14. Notwithstanding the position which Mr Scott adopted in the course of his
very able argument, I think that the Strasbourg jurisprudence needs to be examined
with some care to see whether it provides any support for the Lord Justice Clerk’s
statement in Jude v HM Advocate 2011 SLT 722, para 32 that the argument for the
Crown that the appellants’ right of access to a lawyer was capable of being waived
failed because their consent to be interviewed was not informed by legal advice.
He returned to this point in para 34, where he said:
“Furthermore, a valid waiver can proceed only on the basis of an
informed decision. Since the right allegedly waived was that of
access to legal advice, I cannot see how any of the appellants could
waive that right when, ex hypothesi, he had no reason to think that
he had any such right and had not had access to legal advice on the
point (cf Millar v Dickson 2002 SC (PC) 30; Pfeifer v Austria (1992)
14 EHRR 692; Pishchalnikov v Russia (Application No 7025/04)
(unreported) given 24 September 2009)”
The respondent in this case did have reason to think that he had a right of access to
legal advice, as his detention took place after the decision in Cadder v HM
Advocate [2010] UKSC 43, 2011 SC (UKSC) 13 and he was told that he had a
right to a consultation with a solicitor before he was interviewed. But the question
whether his decision not to exercise that right was an informed decision is directly
in point in his case, as it is in many other cases which are still pending where this
issue has been raised as a devolution issue in the sheriff courts and the High Court
of Justiciary.
Page 9
The Strasbourg cases
15. It is convenient to examine the jurisprudence of the Strasbourg court as it
has developed over time in three stages. In the first group there is the jurisprudence
which formed the basis of the discussion of this issue in Millar v Dickson 2002 SC
(PC) 30; [2002] 1 WLR 1615. The second consists of the jurisprudence on which
the court relied when commenting on this issue in Salduz. The third is the
jurisprudence since Salduz. It has, of course, to be borne in mind when looking at
this jurisprudence that the rights which are said to have been waived may vary in
importance according to the circumstances of each case. The right which we are
dealing with in this case is the right of the detainee to have access to legal advice
prior to and during his interview by the police while in police custody. And the test
of whether the waiver is effective may vary in intensity according to whether it
was express or is said to have been implied from the actings of the applicant. This
is a case where the waiver that is in question was an express waiver, not one that is
said to have arisen by implication.
16. So care needs to be taken when looking at cases where the right said to have
been waived was a different right, such as the right to an independent and impartial
tribunal, and where the right to legal assistance was not declined expressly as it
was in this case – and in Scotland it always will be, if the practice of offering it
which has been adopted in the light of Cadder and the requirements of section 15A
of the 1995 Act is properly carried out. The factual background has always been
important to the approach that the Strasbourg court has taken to implied rights.
Dicta in a case with one set of facts may not be a safe guide to what it would make
of a case with facts that were materially different, and the domestic court too
should be aware of these differences.
(a) the first group
17. In Millar v Dickson 2002 SC (PC) 30 the question was whether the
appellants had waived their right to an independent and impartial tribunal under
article 6 of the Convention by appearing before the temporary sheriffs without
objecting to their hearing their cases on the ground that they did not meet this
requirement. Drawing on such jurisprudence as was to be found in the judgments
of the Strasbourg court at that time, Lord Bingham of Cornhill said in para 31:
“In most litigious situations the expression ‘waiver’ is used to
describe a voluntary, informed and unequivocal election by a party
not to claim a right or raise an objection which it is open to that party
to claim or raise. In the context of entitlement to a fair hearing by an
independent and impartial tribunal, such is in my opinion the
Page 10
meaning to be given to the expression. That the waiver must be
voluntary is shown by Deweer v Belgium (1980) 2 EHRR 439, where
the applicant’s failure to insist on his right to a fair trial was held not
to amount to a valid waiver because it was tainted by constraint (para
54, p 465). In Pfeifer and Plankl v Austria (1992) 14 EHRR 692
there was held to be no waiver where a layman had not been in a
position to appreciate completely the implication of a question he
had been asked (para 38, p 713). In any event, it cannot meaningfully
be said that a party has voluntarily elected not to claim a right or
raise an objection if he is unaware that it is open to him to make the
claim or raise the objection.”
The words “voluntary, informed and unequivocal” capture the essence of what is
needed for a waiver of any kind to be valid. I said in Millar v Dickson, para 53 that
the Strasbourg jurisprudence showed that, unless the person was in full possession
of all the facts, an alleged waiver of the right to an independent and impartial
tribunal must be rejected as not being unequivocal. It could also be said to have
been uninformed. No evidence was produced by the prosecutor in that case, on
whom the onus lay, to show that the appellants were aware of the system which
had been developed by the executive for making and not renewing the sheriffs’
appointments.
18. The judgment in Deweer v Belgium (1980) 2 EHRR 439 was directed to the
first part of Lord Bingham’s test. The applicant paid a fine under protest, following
an order by the public prosecutor for the provisional closure of his butcher’s shop
unless it was paid by way of settlement. The decision in his case shows that to be
effective a waiver must have been “voluntary”, not tainted by constraint. The
judgment in Pfeifer and Plankl v Austria (1992) 14 EHRR 692 provides authority
for the requirement that the election by which the right is said to have been waived
must be “informed”.
19. In the absence of his counsel, Mr Pfeifer waived his right under national
law to have two investigating judges who later presided at his trial disqualified. He
then complained that he had been denied an impartial trial in violation of article
6(1). In para 38 of its judgment in his case the court referred to articles of the Code
of Criminal Procedure which required the investigating judges to inform the
president of the trial court of the circumstances entailing their disqualification, and
to the fact that there was no provision of Austrian law which defined the procedure
to be followed for a defendant expressly to waive his right to be tried by a court
whose composition was in accordance with the law. It stressed that this was a right
of essential importance and that its exercise could not depend on the parties alone.
It went on to note that, when the applicant was told by the presiding judge, in the
absence of his lawyer, that the investigating judges were disqualified, there was
put to him
Page 11
“a question which was essentially one of law, whose implication Mr
Pfeifer as a layman was not in a position to appreciate completely. A
waiver of rights expressed there and then in such circumstances
appears questionable, to say the least. The fact that the applicant
stated that he did not think it necessary for his lawyer to be present
makes no difference.”
The decision in that case shows that regard must be had to the character or nature
of the right when a decision is made as to whether the person was given sufficient
information about that right for him to make an informed decision as to whether or
not he should waive it.
20. The requirement that the waiver of a right guaranteed by the Convention
must be “unequivocal” was emphasised in Oberschlick v Austria (1991) 19 EHRR
389, to which Lord Bingham referred in Millar v Dickson, para 31; see also para
55. That was a case where a journalist was convicted by a court which regarded
itself as bound by the opinion of the court of appeal which had remitted his case to
the lower court for trial after it had been dismissed by that court. The judge who
presided over the court of appeal was the same judge as had presided over it on the
first occasion, contrary to the code of criminal procedure. The journalist
complained that the court of appeal on the second occasion was not an independent
and impartial tribunal. The argument that he had impliedly waived that right
because he had not raised this objection at the hearing of his appeal was rejected,
on the ground that neither he nor his counsel were aware until well after the
hearing of all the circumstances that provided grounds for objecting to the tribunal
on the grounds of impartiality: Oberschlick, para 51. In Jones v United Kingdom
(2003) 37 EHRR CD269 the applicant was absent and unrepresented throughout
his trial. The Fourth Section said at p CD278 that before he could be said to have
impliedly through his conduct waived his right it must be shown that he could
reasonably have foreseen what the consequences of his conduct would be. This
could not be done at the time of his trial as it had not yet been clearly established
under English law that it was possible to try an accused in his absence throughout,
so it could not be said that he had unequivocally and intentionally waived his
rights. His application was held to be inadmissible on other grounds.
21. This first group of cases provides ample support for the proposition that, in
order to be effective as a waiver of a Convention right, the acts from which the
waiver is to be inferred must be voluntary, informed and unequivocal. But they do
not go more deeply into the question as to what is needed for the waiver to be
“informed” in the context of an alleged waiver of a right such as that which is in
issue in this case, where the person is first told what the right is and then says in
terms that he does not want to exercise it. In Oberschlick and Jones the applicant
did not have the information, and in Pfeifer the question that was put to him about
Page 12
disqualification raised an issue of law whose implication he was not in a position
fully to appreciate.
(b) the second group
22. The second group of cases consists of those that the Grand Chamber relied
on in Salduz v Turkey (2008) 49 EHRR 421. The applicant in that case did not
have access to a lawyer because the offence which he was accused of having
committed fell within the jurisdiction of the state security courts. The system in
force at that time did not permit him to have access to a lawyer when he made his
statements to the police, to the public prosecutor and to the investigating judge.
But he had signed a form in which it was stated that he had been reminded of his
right to remain silent. In para 59 of its judgment the Grand Chamber made these
comments on this aspect of the case:
“The Court further recalls that neither the letter nor the spirit of
article 6 of the Convention prevents a person from waiving of his
own free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial. However, if it is to be effective for
Convention purposes, a waiver of the right to take part in the trial
must be established in an unequivocal manner and be attended by
minimum safeguards commensurate to its importance. 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.”
Reference was made in support of these observations to Sejdovic v Italy (2004) 42
EHRR 360, para 36, Kolu v Turkey (Application No 35811/97) (unreported) given
2 August 2005, para 53 and Colozza v Italy (1985) 7 EHRR 516, para 28.
23. In Sejdovic v Italy the applicant was tried in his absence and convicted of
manslaughter. He was held by the Italian authorities to have waived his right to
appear at his trial because after the killing he had become untraceable. In para 33
the Court said:
“The Court re-iterates that neither the letter nor the spirit of article 6
of the Convention prevents a person from waiving of his own free
will, either expressly or tacitly, the entitlement to the guarantees of a
fair trial; however, any such waiver must be made in an unequivocal
manner and must not run counter to any important public interest.”
Page 13
In para 35 it said that to inform someone of a prosecution brought against him was
a legal act of such importance that it must be carried out in accordance with
procedural and substantive requirements capable of guaranteeing the exercise of
the accused’s rights. In para 36 it said that, even supposing that the applicant was
indirectly aware that criminal proceedings had been opened against him, it could
not be inferred that he had unequivocally waived his right to appear at his trial. As
for the question of safeguards,
“It remains to be determined whether the domestic legislation
afforded him with sufficient certainty the opportunity of appearing at
a new trial.”
It held that that safeguard was absent, as the remedy that the criminal procedure
code provided did not guarantee with sufficient certainty that the applicant would
have the opportunity of appearing at a new trial to present his defence.
24. The reference to “the right to take part in the trial” in para 59 of the
judgment in Salduz appears to have been copied from Sejdovic v Italy. It is
consistent with the view that the Grand Chamber had expressed in para 54 about
the importance of the investigation stage, which was the stage at issue in the
Salduz case, for the preparation of the criminal proceedings as a whole. I would
take from the judgment in Sejdovic that the requirement that a waiver must be
made in an unequivocal manner applies to waivers that are alleged to have been
made expressly as much as to implied waivers, and that the reference in Salduz,
para 59 to the alleged waiver of a right being attended by minimum safeguards
commensurate to its importance applies to them too. But the right under
consideration in Sejdovic was the applicant’s right to present his defence at his
trial, and the fact that he had no guarantee that he could do this at any new trial
made it all the more difficult for the Court to hold that for him to be deemed to
have waived his right to appear satisfied the requirements of article 6 of the
Convention.
25. In Colozza v Italy (1985) 7 EHRR 516, para 28 the court said that, to be
effective, the alleged waiver must be established in an unequivocal manner. In that
case it was alleged the applicant had impliedly waived his rights because he did
not appear at his trial. But it was held that an examination of the facts did not
provide a sufficient basis for saying that the waiver was unequivocal, as there was
no evidence that he had been made aware of the opening of the criminal
proceedings against him. All that had happened was that notifications of the trial
had been lodged with the investigating judge and subsequently with the registry of
the court. In Kolu v Turkey (Application No 35811/97), according to the minutes,
the applicant was asked by the investigating authorities if he required a lawyer,
said that he did not want one and then proceeded to make several incriminating
Page 14
statements in answer to the questions that were put to him: para 19. He complained
that he had not the benefit of a lawyer and that the minute had been drafted after,
not during, his questioning: para 48. In para 53 the court said that it found it
difficult to believe the statement in the minutes that he had refused the assistance
of a lawyer. It reaffirmed, under reference to Colozza v Italy, para 28, that to be
effective a waiver of the benefit of the guarantees under article 6 had to be shown
to have been unequivocal, which was not so on the facts of that case.
26. Sejdovic and Colozza were cases of implied waiver. In Kolu it was express.
The right that was in issue in Sejdovic and Colozza was the right to take part in the
trial. They do not provide a basis for reading into the ruling in Salduz a
requirement that the accused must have had legal advice on the point before he can
be held to have waived his right of access to a lawyer before being questioned
while in police custody. In Kolu the point might have been taken, as that was a
case where the applicant’s complaint was that he had been denied access to a
lawyer when he was being questioned. It might have been said, if the court had
wanted to make the point, that the argument that he had waived that right was
unsustainable because he had not received legal advice on the question whether he
should waive it. The court did not take that opportunity. It relied instead on the
rule that a waiver, to be effective, must be unequivocal.
(c) the third group
27. The third group of cases consists of a selection from an increasingly large
number of decisions of the Strasbourg court on waiver since the Grand Chamber’s
judgment on 27 November 2008 in Salduz. It has been stressed repeatedly that, to
be effective, a waiver must be established in an unequivocal manner and attended
by the minimum safeguards commensurate to the importance of the right. But in
none of these cases did the court say that waiver of a right under article 6 was
necessarily incomplete because the applicant had not received legal advice as to
whether or not he should waive it. It was not suggested that the court has said this
in any other case that might have been selected for consideration in this group.
28. The case which comes closest on its facts to this one is Pishchalnikov v
Russia (Application No 7025/04) (unreported) given 24 September 2009, which is
the only case in this group that was mentioned by the Lord Justice Clerk in his
opinion at para 34. The applicant was arrested on suspicion of aggravated robbery.
He asked for the assistance of a lawyer during his interrogation, but this was
disregarded by the investigator who proceeded to question him. It was argued that
his decision then to confess his guilt to the investigator constituted an implied
waiver of his right to counsel. The court found that his statements, made without
having had access to counsel, did not amount to a valid waiver of his right.
Page 15
29. In paras 77-78 of Pishchalnikov the court said, with reference to the right to
counsel:
“77. A waiver of the right, once invoked, must not only be voluntary,
but must also constitute a knowing and intelligent relinquishment of
a right. Before an accused can be said to have implicitly, through his
conduct, waived an important right under article 6, it must be shown
that he could reasonably have foreseen what the consequences of his
conduct would be.
78. The Court considers that the right to counsel, being a
fundamental right among those which constitute the notion of fair
trial and ensuring the effectiveness of the rest of the foreseen
guarantees of article 6 of the Convention, is a prime example of
those rights which require the special protection of the knowing and
intelligent waiver standard. It is not to be ruled out that, after initially
being advised of his rights, an accused may himself validly waive his
rights and respond to interrogation. However, the Court strongly
indicates that additional safeguards are necessary when the accused
asks for counsel because if an accused has no lawyer, he has less
chance of being informed of his rights and, as a consequence, there is
less chance that they will be respected.”
As for the facts of that case, the court said in para 79 that, when an accused had
invoked his right to be assisted by counsel during his interrogation, a valid waiver
of that right could not be established by showing only that he responded to further
police questioning even if he had been advised of his rights. In para 80 it went on
to say this:
“Furthermore, the Court does not rule out that, in a situation when
his request for assistance by counsel had been left without adequate
response, the applicant who, as it follows from the case file, had had
no previous encounters with the police, did not understand what was
required to stop the interrogation. The Court is mindful that the
applicant may not have had sufficient knowledge, experience, or
even sufficient self-confidence to make the best choice without the
advice and support of a lawyer. It is possible that he did not object to
further questioning in the absence of legal assistance, seeing the
confession (true or not) as the only way to end the interrogation.
Given the lack of legal assistance the Court considers it also unlikely
that the applicant could reasonably have appreciated the
consequences of his proceeding to be questioned without the
Page 16
assistance of counsel in a criminal case concerning the investigation
of a number of particularly grave criminal offences.”
30. The reasoning in para 80 shows that the Strasbourg court is sensitive to the
facts of the case when it is addressing this issue. I do not find in any of these
paragraphs a basis for holding that, as a rule, an accused must have had access to
legal advice on the question whether or not he should waive his right to consult a
solicitor before being interviewed by the police. But there are indications in the
judgment that, in determining what safeguards are necessary, account should be
taken of the importance of the right. Account should also be taken of the fact that,
for a variety of reasons which will vary from case to case and may depend on the
gravity of the offences which he is suspected of having committed, the accused
may not have appreciated the consequences of his agreeing to be questioned in the
absence of a solicitor. Pishchalnikov is, of course, distinguishable on its facts
because the investigator ignored the applicant’s request for a lawyer. The court
noted in para 80 that there was no evidence that the confessions which the
applicant made during his further interrogation had been initiated by him. It was a
blatant example of a person who was facing a serious charge being denied the very
right which he had made it plain he wished to exercise. It was also a case in which
the waiver that was in question was an implied waiver.
31. The decision in Pishchalnikov does not tell us what view the court would
have taken if the applicant had been advised by the authorities that he had a right
to a lawyer and he had then told them expressly, of his own free will, that he did
not wish to exercise that right. But guidance as to how the court is likely to see a
case of that kind is to be found in Yoldaş v Turkey (Application No 27503/04)
(unreported) given 23 February 2010.
32. The applicant in Yoldaş was charged with belonging to an illegal
organisation. He was informed of his rights by the public prosecutor and by the
judge who placed him on remand. He signed a form which told him that he had the
right to appoint a legal representative who could be present when his statement
was taken. It also told him that he could benefit from the legal assistance of a legal
representative appointed by the bar association if he was not in a position to
appoint one. He stated that he understood his rights but that he did not wish to be
assisted a lawyer. The court recalled the declaration in Salduz, para 59 that, in
order to be effective for the purposes of the Convention, any waiver of the right to
take part in the trial must be established unequivocally and be surrounded by a
minimum of guarantees as to its seriousness. Applying those principles to the facts
of the case in para 52, it noted that he had been reminded of his right to legal
assistance, that he refused it and that it clearly emerged from his statements taken
whilst in custody that his decision to waive his right to legal assistance was freely
and voluntarily made:
Page 17
“Hence, the applicant’s waiver of this right was unequivocal and
surrounded by a minimum guarantee.”
This decision indicates that where it is shown that the accused, having been
informed of his rights, states that he does not want to exercise them, his express
waiver of those rights will normally be held to be effective. The minimum
guarantees are that he has been told of his right and that the waiver was freely and
voluntarily made. The minority said in their dissenting judgment that a procedural
choice made without a lawyer being able to inform and advise him could not be
free and informed, but the court did not accept this argument.
33. The same approach was taken in two other cases in this group. In Galstyan
v Armenia (2007) 50 EHRR 618 the applicant was arrested when he was on his
way home from a protest rally. He was made aware of his rights and expressly
declined a lawyer. The Court held that, as it was his own choice not to have a
lawyer, the authorities could not be held responsible for the fact that he was not
represented in the proceedings against him. In para 91 it said that, while the nature
of some rights safeguarded by the Convention was such as to exclude a waiver of
entitlement to exercise them, the same could not be said of other rights. A person
had a choice under article 6(3)(c) of defending himself in person or through legal
assistance, so it would normally not be contrary to the requirements of that article
if an accused was self-represented in accordance with his own free will. There was
no evidence in that case that his choice was the result of any threats or physical
violence or that he was tricked into refusing a lawyer. In Sharkunov and Mezentsev
v Russia (Application No 75330/01) (unreported) given 10 June 2010, in which it
held that there had been no violation of the right to legal assistance, the court
reiterated at para 106 that neither the letter nor the spirit of article 6 prevents a
person from waiving of his own free will, either expressly or tacitly, the
entitlement to the guarantees of a fair trial but that, to be effective for Convention
purposes, the waiver must be established in an unequivocal manner and be
attended by minimum safeguards commensurate to its importance.
34. In Paskal v Ukraine (Application No 24652/04) (unreported) given 15
September 2011 the applicant, who had a university degree in law and at the
material time was serving as a police officer, was arrested on suspicion of having
taken part in a robbery. He signed a procedural rights notification form and noted
that he wished to appoint a lawyer whom he named as his advocate. He was then
questioned, without a lawyer being present, about the robbery just after he had
explicitly expressed that wish. It was argued that this was a case of an implied
waiver. The Court said that it had been mindful in a number of its judgments of the
vulnerable position of a suspect vis-à-vis the investigative authorities and had
emphasised the paramount importance of access to a lawyer before the first
questioning as a means to counter the imbalance between the parties. Recalling the
Grand Chamber’s observations in Salduz, para 59 that neither the letter nor the
Page 18
spirit of article 6 of the Convention prevents a person from waiving of his own free
will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, as
long as a waiver of the right is given in an unequivocal manner and was attended
by safeguards commensurate to its importance, it addressed the question whether
the waiver constituted “an act of the applicant’s free will and informed procedural
choice”: para 77. The fact that the applicant was a policeman and a lawyer himself
might not mean that he was not vulnerable and in need of an advocate’s support.
But the level of his expertise could not be discounted in assessing whether his
consent to participate in the particular questioning was well-informed. The court
concluded that the waiver was effective as he was not coerced to give any
statement in defiance of his will: para 78.
35. But a different view might be taken if there is reason to believe that the
applicant was not able to act freely or did not understand his rights. In Talat Tunç v
Turkey (Application No 32432/96) (unreported) given 27 March 2007 the
applicant did not ask for a lawyer. But the court noted in para 60 that he had in
effect stated that he was not able to act freely because he was being threatened
with ill-treatment and that it was not possible to hold that he could reasonably have
foreseen the consequences of his not requesting the assistance of a lawyer in
criminal proceedings where he was at risk of being sentenced to death as he did
not have any formal education and was from a humble background: see also
Duman v Turkey (Application No 28439/03) (unreported) given 23 March 2010,
para 48; Lopata v Russia (Application No 72250/01) (unreported) given 13 July
2010, para 135. In Plonka v Poland (Application No 20310/02) (unreported) given
31 March 2009 the applicant signed a form acknowledging that she had been
informed of her right to be assisted by a lawyer during her questioning by the
police and the prosecution authorities. But it was held that her assertion in the
form that she had been reminded of her right to remain silent and to be assisted by
a lawyer could not be considered reliable as she was suffering from alcoholism and
was in a vulnerable position as the time of her interview: para 37-38. Bortnik v
Ukraine (Application No 39582/04) (unreported) given 27 January 2011 is another
case of this type. In Şaman v Turkey (Application No 35292/05) (unreported)
given 5 April 2011 the applicant, who was accused of being a member of an illegal
organisation and faced a heavy penalty, had an insufficient knowledge of Turkish
and was without the help of an interpreter. The Court held that she could not
reasonably have appreciated the consequences of accepting to be questioned
without the assistance of a lawyer in a criminal case concerning the investigation
of particularly grave offences. The waiver may come too late, as in Zaichenko v
Russia (Application No 39660/02) (unreported) given 18 February 2010, where the
relevant incriminating statement was made before the applicant was advised of his
right to remain silent: see para 53.
36. No mention was made in this group of cases of a rule that an applicant who
has acted of his own free will must have access to legal advice on the question
Page 19
whether or not he should waive his right before he can be held to have waived that
right. But they do show that a different view might be taken if there is reason to
believe that the applicant was not able to act freely or that he did not understand
the right that was being waived.
Comparative jurisprudence
37. The main source of comparative jurisprudence on the issue of waiver by a
suspect of the right of access to a lawyer while being questioned by the police is to
be found in decisions of the US Supreme Court. Although the Strasbourg court has
not referred to Miranda v Arizona 384 US 436 (1966) in any of its judgments,
there are signs that it and subsequent cases that the ruling in Miranda have given
rise to have influenced the thinking of the Strasbourg court as it develops the
principles described in Salduz: see Ambrose v Harris (Procurator Fiscal, Oban)
2011 SLT 1005, paras 52-53. Judge de Meyer noted in his dissenting opinion in
Imbrioscia v Switzerland (1993) 17 EHRR 441, 460 that the expression
“knowingly and intelligently” had been used as long ago as 1966 in Miranda and
that the principles there defined belong to the very essence of a fair trial.
38. The issue of waiver was raised in Miranda in a series of cases where
decisions of the courts below were reversed because the accused had not been told
of his rights before being questioned while in custody by the police. At p 475 the
court said:
“52-54 An express statement that the individual is willing to make a
statement and does not want an attorney followed closely by a
statement could constitute a waiver. But a valid waiver will not be
presumed simply from the silence of the accused after warnings are
given or simply from the fact that a confession was in fact eventually
obtained. A statement we made in Carnley v Cochran, 369 US 506,
516, 82 S Ct 884, 890, 8 L Ed 2d 70 (1962) is applicable here:
‘Presuming waiver from a silent record is impermissible. The record
must show, or there must be an allegation and evidence which show,
that an accused was offered counsel but intelligently and
understandingly rejected the offer.’ ”
At p 479 it summarised the prerequisites for an effective waiver in these terms:
“[The suspect] must be warned prior to any questioning that he has
the right to remain silent, that anything he says can be used against
Page 20
him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him
throughout the interrogation. After such warnings have been given,
and such opportunity afforded to him, the individual may knowingly
and intelligently waive these rights and agree to answer questions or
make a statement. But unless and until such warnings and waiver are
demonstrated by the prosecutor at trial, no evidence obtained as a
result of interrogation can be used against him.”
The phrase “intelligently and understandingly” does not appear in any of the
judgments of the Strasbourg court. But the phrase “knowing and intelligent” was
used in Pishchalnikov, para 77, and it is not far away from Lord Bingham’s
proposition in Millar v Dickson 2002 SC (PC) 30, para 31 that the expression
“waiver” is used to describe a voluntary, informed and unequivocal election by a
party not to claim a right or raise an objection which it is open to that party to
claim or raise.
39. In North Carolina v Butler 441 US 369 (1979) at p 373 the Court said that
an express written or oral statement of waiver of the right to remain silent or of the
right to counsel is usually strong proof of the validity of that waiver, but that it was
not inevitably either necessary or sufficient to establish waiver:
“The question is not one of form, but rather whether the defendant in
fact knowingly and voluntarily waived the rights delineated in the
Miranda case. As was unequivocally said in Miranda, mere silence
is not enough. That does not mean that the defendant’s silence,
coupled with an understanding of his rights and a course of conduct
indicating waiver, may never support a conclusion that a defendant
has waived his rights. The courts must presume that a defendant did
not waive his rights; the prosecution’s burden is great; but in at least
some cases waiver can be clearly inferred from the actions and
words of the person interrogated.”
The phrase used here was “knowingly and voluntarily”. But the words used in
these various formulations of the test all carry with them the idea that the waiver
must have been an informed decision, based on an understanding of what the right
is that is being waived.
40. In Edwards v Arizona 451 US 477 (1981) the Court returned to the question
what was needed for a valid waiver. At p 482 it said that it was reasonably clear
Page 21
under its cases that waivers of counsel must not only be voluntary, but must also
constitute a knowing and intelligent relinquishment or abandonment of a known
right or privilege. This was a matter which would depend in each case upon the
particular facts and circumstances, including the background, experience and
conduct of the accused. At p 483 the trial court was criticised for finding the
accused’s admission to have been voluntary, without separately focusing on
whether he had knowingly and intelligently relinquished his right to counsel. At p
484, recalling that in North Carolina v Butler it had strongly indicated that
additional safeguards are necessary when the accused asks for counsel, it held that
when an accused had invoked his right to have counsel present during custodial
interrogation a valid waiver of the right cannot be established simply by showing
only that he responded to further police-initiated custodial interrogation. In that
case, as Chief Justice Burger noted in a concurring judgment at p 488, when the
accused said that he did not wish to speak to anyone he was told by the detention
officer “that he had to”. The reference in this judgment to the need for additional
safeguards can be compared with the Strasbourg court’s requirement that a waiver
must be attended by “minimum safeguards commensurate to its importance” which
first made its appearance in Salduz, para 59.
41. In Oregon v Elstad 470 US 298 (1985) the respondent argued that he was
unable to give a fully informed waiver of his rights because he was unaware that
his unwarned prior statement could not be used against him: p 316. He suggested
that the officer at the Sheriff’s headquarters should have added an additional
warning to those given to him at the Sheriff’s office to cure this deficiency.
Delivering the opinion of the court, Justice O’Connor said at p 316 that such a
requirement was neither practicable nor constitutionally necessary:
“Standard Miranda warnings explicitly inform the suspect of his
right to consult a lawyer before speaking. Police officers are illequipped to pinch-hit [i.e. substitute] for counsel, construing the
murky and difficult questions of when ‘custody’ begins or whether a
given unwarned statement will ultimately be held admissible…
This court has never embraced the theory that a defendant’s
ignorance of the full consequences of his decisions vitiated their
voluntariness.”
At p 316 the Court recalled that in California v Beheler 463 US 1121 (1983) it
declined to accept the defendant’s contention that, because he was unaware of the
potential adverse consequences of statements he made to the police, his
participation in the interview was not voluntary. It concluded its discussion of this
topic with these words:
Page 22
“Thus we have not held that the sine qua non for a knowing and
voluntary waiver of the right to remain silent is a full and complete
appreciation of all of the consequences flowing from the nature and
quality of the evidence in the case.”
42. More recently the word “intelligent” which was used by the court in
Miranda has been brought back into the formula, and the court has explained that
as a general rule the test will be satisfied if the choice is made with a full
understanding of what the rights are. In Maryland v Shatzer (2010) 130 S Ct 1213,
1219 Justice Scalia, delivering the opinion of the court, said:
“To counteract the coercive pressure [of police questioning],
Miranda announced that police officers must warn a suspect prior to
questioning that he has a right to remain silent, and a right to the
presence of an attorney. After the warnings are given, if the suspect
indicates that he wishes to remain silent, the interrogation must
cease. Similarly, if the suspect states that he wants an attorney, the
interrogation must cease until an attorney is present. Critically,
however, a suspect can waive these rights. To establish a valid
waiver, the State must show that the waiver was knowing, intelligent
and voluntary.”
And in Berghuis v Thompkins (2010) 130 S Ct 2250, 2262, Justice Kennedy said:
“Although Miranda imposes on the police a rule that is both
formalistic and practical when it prevents them from interrogating
suspects without first providing them with a Miranda warning…, it
does not impose a formalistic waiver procedure that a suspect must
follow to relinquish those rights. As a general proposition, the law
can presume that an individual who, with a full understanding of his
or her rights, acts in a manner inconsistent with their exercise has
made a deliberate choice to relinquish the protection those rights
afford.”
43. It has not been not suggested by the US Supreme Court in any of these
cases that it was essential to a waiver of right to counsel that the accused should
have had legal advice on the point as to whether or not he should waive it. The
court’s reasoning in Oregon v Elstad and the presumption to which Justice
Kennedy referred in Berghuis v Thompkins seem to be in conflict with there being
any such requirement.
Page 23
44. The Crown has drawn attention to the fact that few jurisdictions approach
the question of waiver on the basis that legal advice on the consequences of the
waiver is a prerequisite. The Supreme Court of Canada described what it has called
the informational component of the right under section 10(b) of the Charter of
Rights and Freedoms to retain and instruct counsel as relatively straightforward: R
v Willier [2010] 2 SCR 429, paras 29-31. A person who waives a right must know
what he or she is giving up if the waiver is to be valid. It is the duty of the police to
inform the detainee of his or her right to retain and instruct counsel without delay
and of the existence and availability of legal aid and duty counsel. This ensures
that a detainee who persists on waiving the right of access to counsel has the
information and will know what he or she is actually giving up: R v Bartle [1994]
3 SCR 173, 206; R v Prosper [1994] 3 SCR 236, 274, per Lamer CJ. But there is
no indication in its decisions that the detainee must have had legal advice as to
whether or not the right should be waived before the waiver can be held to be
effective. Information obtained from Eurojust about the position in Member States
of the EU suggests that the right to legal advice before being questioned can be
waived without prior consultation with a lawyer in Austria, Sweden, Estonia,
France and Malta. The courts in Germany and Poland have not decided whether
the suspect needs to consult with a lawyer before a waiver can be held to be
effective. In Bulgaria, the Czech Republic, the Netherlands and Spain the presence
of a lawyer during interrogation is in certain circumstances compulsory.
45. The Strasbourg court found support for the decision it took in Salduz from
the fact that the principles which it outlined were in line with the generally
recognised international human rights standards which are at the core of the
concept of a fair trial: (2009) 49 EHRR 421, para 53. It appears to be clear that
there is no generally internationally recognised human rights standard on the issue
of waiver that would support the conclusion that access to legal advice is an
essential prerequisite to an effective waiver by a detainee of the right of access to a
lawyer when he is being questioned by the police.
Discussion
46. I do not think that the Strasbourg jurisprudence provides any support for the
Lord Justice Clerk’s statement in Jude v HM Advocate 2011 SLT 722, para 32 that
the argument for the Crown that the appellants’ right of access to a lawyer was
capable of being waived failed because their consent to be interviewed was not
informed by legal advice. The court has had the opportunity on a number of
occasions to lay down a rule to that effect, but it has not taken it. The cases of
Yoldaş v Turkey (Application No 27503/04), 23 February 2010, Galstyan v
Armenia (2007) 50 EHRR 618, Sharkunov and Mezentsev v Russia (Application
No 75330/01) 10 June 2010 and Paskal v Ukraine (Application No 24652/04) 15
September 2011 (see paras 32-34, above) are particularly instructive on this point,
as they could not have been decided as they were if there had been a rule to that
Page 24
effect. The decisions of the US Supreme Court since Miranda do not lend
encouragement to any suggestion that it would be appropriate for such a rule to be
laid down. The wording of its observations in Oregon v Elstad 470 US 298 is a
strong pointer in the contrary direction. I would hold therefore that the statements
in Jude, paras 32 and 34 which indicate that there is such a rule should be
disapproved. Where the accused, having been informed of his rights, states that he
does not want to exercise them, his express waiver of those rights will normally be
held to be effective. The minimum guarantees are that he has been told of his right,
that he understands what the right is and that it is being waived and that the waiver
is made freely and voluntarily.
47. There is however a theme that runs through the Strasbourg court’s decisions
which indicates that access to a lawyer may well be a necessary prerequisite of a
valid waiver in some cases. Talat Tunç v Turkey (Application No 32432/96) 27
March 2007 and Şaman v Turkey (Application No 35292/05) 5 April 2011 (see
para 35, above) provide illustrations of this point. The court must be alive to the
possibility that the words of the caution, and advice that the detainee has the right
to a private consultation with a solicitor before any questioning begins and at any
other time during such questioning which is required by section 15A(3), may not
be fully understood by everyone. Comprehending the Scottish caution: Do
offenders understand their right to remain silent? David J Cooke and Lorraine
Philip (1998) Legal and Criminological Psychology 13, was written some time ago
and does not fully reflect current practice. But it serves as a warning that it should
not be taken for granted that everyone understands the rights that are being
referred to. People who are of low intelligence or are vulnerable for other reasons
or who are under the influence of drugs or alcohol may need to be given more than
standard formulae if their right to a fair trial is not to be compromised.
48. Lord Carloway was appointed by the Cabinet Secretary for Justice to
review key elements of Scottish criminal law and practice in the light of the
decision in Cadder. The Carloway Review was published on 17 November 2011.
Among the issues with which it deals and about which it makes recommendations
is that of waiver: paras 6.1.41-6.1.47. The Association of Chief Police Officers in
Scotland has already produced a manual of guidance of solicitor access: the
ACPOS Manual which was published in January 2011. That guidance too is
currently under review. I am conscious that anything we may say in this case may
be overtaken by events, and I would not want in any way to restrict the scope of
these reviews. But I would make two suggestions, while emphasising that in
making them I am not intending to suggest that article 6 requires that these steps
must, as a rule, be taken in every case.
49. The first relates to the question whether the accused has been fully informed
of the right of access to a lawyer. I suggest that, to minimise the risk of
misunderstanding, the police should follow the practice indicated by para 6.5 of
Page 25
Code C of the Code of Practice for the Detention, Treatment and Questioning of
Persons by Police Officers which was introduced in England in the light of the
Police and Criminal Evidence Act 1984, as to the background to which see the
editorial, Legal advice in police stations: 25 years on, in (2011) Crim LR 1. Para
6.5 states inter alia:
“If, on being informed or reminded of [the right of access to legal
advice], the detainee declines to speak to a solicitor in person, the
officer should point out that the right includes the right to speak to a
solicitor on the telephone. If the detainee continues to waive this
right the officer should ask them why and any reasons given should
be recorded on the custody record or the interview record as
appropriate.”
Offering the detainee the right to speak to a solicitor on the telephone may be
relevant if the detainee is concerned about delay in securing the attendance of a
solicitor at the police station. The giving of reasons may reveal that, although he
has been given the standard caution and advice, the detainee has not fully
understood what his rights are. It will provide an opportunity for any obvious
misunderstandings to be corrected. Failure to do that may be relevant to the
question whether the waiver was “knowing and intelligent” or “voluntary,
informed and unequivocal”, and thus to the question whether, in all the
circumstances, the detainee was deprived of his right to a fair trial. Any reasons
that are given should be recorded. But, as Justice O’Connor observed in Oregon v
Elstad 470 US 298 (1985) at p 316 (see para 41, above), police officers are illequipped to substitute for counsel. So it would seem to be unwise for them to be
encouraged to take the further step of offering advice to the detainee.
50. Lord Kerr has made a powerful case for requiring steps to be taken to
ensure that the accused has a clear understanding and insight as to the significance
of dispensing with the services of a lawyer. He would require the steps indicated
by para 6.5 of Code C to be taken in every case, because without them a decision
to waive cannot be said to have been voluntary, informed and unequivocal: see
para 117, below. I recognise the force of his argument, and there is much to be said
for this as a suggestion as to how the current practice should be improved. But best
practice is one thing. An absolute rule, to which section 57(2) of the Scotland Act
must always give effect, is quite another. I do not think that it can be said that an
absolute rule to the effect that Lord Kerr contends for has been clearly identified
by the Strasbourg court. Moreover, as the terms of the reference make clear, we
have not been asked to make a declaration to that effect in this case. What we have
been given by Strasbourg, as I see it, is a guiding principle as to what is needed for
there to be an effective waiver. Its application in determining whether there will
be, or has been, a fair trial will depend on the facts of each case.
Page 26
51. The second suggestion comes from the observation by the US Supreme
Court in Miranda v Arizona 384 US 436, at p 473 in paras 41, 42 that, in order
fully to apprise a person interrogated of the extent of his right under the system
that it was laying down in that case, it is necessary to warn him not only that he
has the right to consult with an attorney, but also that if he is indigent a lawyer will
be appointed to represent him. The wording of the advice that, in accordance with
the standard practice, the respondent was given when he was told of his right to
consult with a solicitor prior to and during his questioning did not go on to advise
him of the arrangements that might be made if he wanted to exercise that right and
was unable to name a solicitor or was concerned about the cost of employing one.
The fact that the respondent was able in this case to give an appropriate name
when he was asked if he wished intimation of his detention to be sent to a solicitor
suggests that he was under no misapprehension on this point. But it might be wise
not to rely on assumptions about this, even in the case of those with previous
experience of the criminal process.
52. As for the facts of this case, Mr Scott submitted that the wording of the
current safeguards was defective and that the Crown could not show that the
respondent waived his rights knowingly and intelligently. The advocate depute, for
her part, referred to various safeguards that were in place to ensure that the waiver
met this standard. She said that there were no grounds for thinking that the
respondent was vulnerable or had not been able to understand the caution. The fact
that he had nominated a firm of solicitors with experience of criminal law and
procedure showed that he was aware of his rights and of the significance of
declining the offer of access to them before and during his questioning.
53. I do not think that it would right for this court to reach a decision on these
competing arguments as Lord Kerr would do. The issue has come before us as a
reference which was directed to a particular issue on which our guidance was
sought, and not as an appeal. It raises questions of fact and degree which ought
properly to be dealt with in the trial court. I would remit the question whether for
the Lord Advocate to lead and rely on the evidence of his interview would be
incompatible with his Convention right to a fair trial to the sheriff for
determination after he has heard all the evidence on this issue.
Conclusion
54. I would answer the first question in the reference in the negative. The
jurisprudence of the Strasbourg court does not support the proposition that, as a
rule, the right of access to legal advice during police questioning can only be
waived if the accused has received advice from a lawyer as to whether or not he
should do so. I would remit the second question to the sheriff. The answer to it
must depend on whether, on a consideration of all the facts and circumstances, the
Page 27
sheriff is satisfied that it would be fair for the Lord Advocate to lead and rely upon
evidence of the answers that the respondent gave during his police interview.
LORD BROWN
55. Having had the opportunity of reading in draft the judgments of Lord Hope,
Lord Dyson and Lord Hamilton on the one hand and Lord Kerr on the other, I find
myself in full agreement with the majority. I can briefly summarise why by
reference to Lord Kerr’s judgment at para 127, with much of which I agree but
certain parts of which I cannot accept.
56. At para 127(iii) Lord Kerr concludes that a purported waiver should not be
regarded as effective “[u]nless it is shown that the suspect had a proper insight into
the significance of the decision to waive his right”. This conclusion clearly derives
from para 117 of Lord Kerr’s judgment where he says that the suspect “must have
reasonable foresight of the consequences for him of [waiving his right to be
advised by a lawyer before or during interview]” and adds:
“I do not suggest that a suspect needs to be aware of every legal
nuance that might arise in the course of his interview but he should
be aware in a general sense that legal issues might arise and should
have consciously decided that he is prepared to forego the advice
that a lawyer might give on those issues either before or in the course
of the interview.”
57. If by that is meant, as appears to be meant, that the suspect must realise
more than that he will be asked questions by the police without the benefit of legal
advice, to my mind Lord Kerr is asking too much. As Lord Hamilton says at para
94 of his judgment:
“The natural and legitimate inference in circumstances where the
suspect has responded with a clear negative to the enquiry [whether
he wishes to exercise his right to legal assistance] will be that he or
she has a proper understanding, including an appreciation that in
light of his or her answer legal assistance will not be made available
for the purposes of the interview.”
58. Lord Dyson says much the same thing at para 70 of his judgment. It is
surely obvious that the point of a lawyer is to advise on any legal issues that may
arise and that if a suspect chooses to forego this right he will be questioned without
Page 28
the benefit of such advice. He surely does not have to be told in terms that, in this
event, he may say something (or neglect to say something) which a lawyer, had he
been present, might have advised him not to say (or, indeed, to say). At para 106 of
his opinion Lord Kerr points to the fact that in Scotland a suspect accused of a
sexual offence can supply the necessary corroboration to support an eventual
conviction by asserting at interview that the sexual activity was consensual. But
surely no one suggests that the suspect needs to be made aware of specific legal
considerations of this nature before he can be said to have waived his right to legal
advice.
59. The other part of para 127 of Lord Kerr’s judgment with which I
respectfully disagree is the suggestion that within the “minimum safeguards”
necessarily to be provided before a waiver can be regarded as “knowing and
intelligent”, “informed” and “unequivocal”, are a question to the suspect as to why
he has decided not to exercise his right to legal advice (and the recording of his
answer) and informing him that a telephone consultation with a solicitor can be
arranged. As to this I agree with what Lord Hope says at para 49 of his judgment.
There is much to be said for introducing such further steps into the current practice
(as in England and Wales) but I cannot accept that Strasbourg jurisprudence has
already established an absolute rule to this effect.
60. All agree that the first question in the reference should be answered in the
negative. In common with the majority I too would remit the second question to
the Sheriff for his decision on the facts.
LORD DYSON
61. I agree entirely with the judgment of Lord Hope. I add a few words of my
own because the waiver issue is as important for the rest of the United Kingdom as
it is for Scotland. The questions that were referred to this court by the Sheriff in
the present case raise the issue of what is required by the European Convention on
Human Rights (“the Convention”) for a valid waiver by an accused of the right of
access to a lawyer prior to police questioning. This right, which was established in
Salduz v Turkey (2008) 49 EHRR 421, is implicit in the right to a fair trial
accorded by article 6 of the Convention. It is not in doubt that rights accorded by
article 6 of the Convention can be waived. In Salduz itself, the Grand Chamber
said:
“..…..neither the letter nor the spirit of art 6 of the Convention
prevents a person from waiving of his own free will, either expressly
or tacitly, the entitlement to the guarantees of a fair trial. However,
Page 29
if it is to be effective for Convention purposes, a waiver of the right
to take part in the trial must be established in an unequivocal manner
and be attended by minimum safeguards commensurate to its
importance.”
62. The statement that a waiver is unequivocal and attended by minimum
safeguards has been repeated as a mantra by the ECtHR in a number of cases. The
court has given little further explicit guidance as to what is required for a valid
waiver. As so often, in order to determine Strasbourg’s approach to this question, it
is necessary to examine the court’s jurisprudence to see how guidance which has
been expressed at a high level of generality is applied in practice. But it is fair to
say that on a number of occasions the court has also said that the right to the
assistance of a lawyer at police interview can only be validly waived if the accused
could reasonably have foreseen the consequences of his decision. Thus, for
example, in Pishchalnikov v Russia (Application No 7025/04 ) (unreported) 24
September 2009 (para 77), the court said that a waiver
“once invoked, must not only be voluntary, but must also constitute a
knowing and intelligent relinquishment of a right. Before an accused can be
said to have implicitly, through his conduct, waived an important right
under article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be”.
63. It is true that Pishchalnikov was not a case of express waiver and the
accused had been denied a lawyer although he had requested one. But there cannot
be a relevant difference between an express and an implied waiver; and it is
difficult to see why the requirement of reasonable foresight of the consequences of
a decision not to have a lawyer should depend on whether or not the accused
requested a lawyer.
64. It is common ground that the ECtHR has not gone so far as to say that there
cannot be a valid waiver unless the accused has first been advised by a lawyer of
the implications of not having the benefit of the assistance of a lawyer both before
and during a police interview. It is accepted by Mr Scott QC that, although legal
advice as to the desirability of having a lawyer to protect the interests of an
accused at the interview stage is the most effective way of ensuring that his or her
article 6 rights are protected, the Strasbourg jurisprudence does not mandate it. As
Lord Hope points out, the ECtHR has had many opportunities to insist on such a
requirement in every case, but has never done so.
65. But how does a prosecuting authority prove (the burden being on it) that an
accused had reasonable foresight of the consequences of a decision to be
Page 30
interviewed without the assistance of a lawyer? It has never been said by the
ECtHR that it must be shown that an accused had reasonable foresight of all the
consequences of such a decision. That would be tantamount to saying that no
person (except perhaps an accused who has experience and understanding of
criminal law and procedure) could waive the right to legal assistance without first
having legal advice as to the wisdom of doing so. But as I have said, it is not in
dispute that Strasbourg has never gone so far as to say this and its jurisprudence is
not consistent with such an approach.
66. As Lord Hope points out at paras 32 to 34, there are several decisions of the
court where all that was required for the purposes of a valid waiver was proof that
the accused had been informed that he had the right to have a lawyer present when
he was interviewed and he refused to exercise that right. Thus in Yoldaş v Turkey,
for example, the accused was informed of his right to be assisted by a lawyer while
he was in custody and he refused a lawyer’s services. That was enough to persuade
the court that the accused had sufficient foresight of the consequences of his
decision to refuse the assistance of a lawyer to constitute a valid waiver. It was not
necessary to go further and be satisfied that the accused understood precisely how
the lawyer might have been able to assist him and from what pitfalls he might have
been able to protect him. That could not have been done, not least because it would
have been impossible to predict what course the interview would take.
67. On the other hand, if there are reasonable grounds for believing that the
accused is vulnerable in some way and that he does not understand in general
terms that a lawyer might be able to assist him at the interview, then it is not
enough for the police merely to ask him whether he wishes to have the assistance
of a lawyer. Additional safeguards are necessary to ensure that such a person does
not waive his right to legal assistance at the interview without a proper
understanding of the significance of what he is doing. The most obvious way of
achieving this is by the provision of legal advice on the question of legal
assistance. Depending on the circumstances, however, there may be other ways of
ensuring that the accused understands the implications of refusing the assistance of
a lawyer at interview.
68. It will be a question of fact in each case whether the accused can reasonably
understand the implications of refusing the assistance of a lawyer at police
interview. The ultimate question is what fairness demands in the particular case.
Lord Hope has referred to a number of cases at para 35 where for one reason or
another there were grounds for doubting whether an accused had sufficient
understanding of the implications of refusing the assistance of a lawyer. Another
case where the court held that the accused had not waived his article 6 rights
because it had not been established that he would have understood the implications
of his doing so is Panovits v Cyprus (Application No 4268/04) (unreported) 11
December 2008. At para 71, the court said:
Page 31
“Moreover given the lack of assistance by a lawyer or his guardian,
it was also unlikely that he could reasonably appreciate the
consequences of his proceeding to be questioned without the
assistance of a lawyer in criminal proceedings concerning the
investigation of a murder…”
69. The court had earlier emphasised “the vulnerability of an accused minor
and the imbalance of power to which he is subjected by the very nature of criminal
proceedings” (para 68). He was 17 years of age at the material time.
70. I agree with what Lord Hope says at para 47. The court must be astute to
the possibility that the implications of refusing the assistance of a lawyer may not
be understood even by an apparently intelligent person. It will depend on all the
circumstances, including the age, health and apparent intelligence of the person as
well as the extent to which he or she appears to be in a state of stress and the likely
length and complexity of the interview. But in a relatively simple case, where the
accused appears to be intelligent and not especially vulnerable and he
unequivocally and voluntarily refuses the offer of the assistance of a lawyer, the
prosecution will usually be able to show that there has been a valid waiver. It is not
necessary to show that the accused understood precisely what assistance could
have been given but rejected it nevertheless. It is sufficient to show that the
accused understood that the lawyer would or might be able to provide assistance at
the interview stage which would or might be of benefit to him. The precise nature
of the benefit does not matter. In most cases, this cannot be known in advance of
the interview.
71. It follows that (as is common ground) the first question must be answered in
the negative. I agree with Lord Hope that, for the reasons he gives, the second
question should be remitted to the Sheriff.
LORD HAMILTON
72. The first question in the reference as now adjusted before this court is (read
short):
“Whether it would necessarily be incompatible with articles 6(1) and
6(3)(c) of [the Convention] for the Lord Advocate to lead and rely
upon evidence of answers given during a police interview of a
suspect in custody … who, before being interviewed by the police
Page 32
(a) had been informed by the police officer of his Salduz/article 6
rights of access to legal advice; and
(b) without having received advice from a lawyer, had stated that
he did not wish to exercise such rights.”
73. It was accepted before us on either hand that the question so formulated fell
to be answered in the negative. Mr Scott for the respondent conceded that on the
basis of the jurisprudence of the Strasbourg Court as developed to date it could not
be maintained that, in order effectually to waive his right of access to legal advice
for the purposes of a police interview, the suspect must first actually have been in
receipt of legal advice. In my view that concession was inevitable. While the
domestic laws of certain of the Convention countries have laid down that, at least
in some circumstances, the content of a police interview cannot be received in
evidence unless the suspect has prior to the interview (or in its course) been in
receipt of legal advice, the jurisprudence of the Court of Human Rights lays down
no such requirement. In so far as the opinion of the Lord Justice Clerk in Jude,
Hodgson and Birnie v HM Advocate 2011 SCCR 300; 2011 SLT 722, at paras 32
and 34 may be read (or misread) as laying down that actual receipt of legal advice
prior to interview is a precondition of any effectual waiver, that opinion (with
which the other judges concurred) is, in my respectful view, unsupported by the
authorities apparently relied upon.
74. The live issue before us is whether the arrangements put in place in
Scotland following the amendment of the Criminal Procedure (Scotland) Act 1995
by the insertion of section 15A, an insertion made with effect from 30 October
2010 for the Criminal Procedure (Legal Assistance, Detention and Appeals)
(Scotland) Act 2010, are compliant with Convention jurisprudence. That
amendment was itself consequential on the judgment of the Supreme Court in
Cadder v HM Advocate 2011 SC (UKSC) 13. Section 15A provides:
“15A Right of suspects to have access to a solicitor
(1) This section applies to a person (‘the suspect’) who –
(a) is detained under section 14 of this Act,
(b) attends voluntarily at a police station or other premises
or place for the purpose of being questioned by a constable on
suspicion of having committed an offence, or
(c) is –
(i) arrested (but not charged) in connection with an
offence, and
(ii) being detained at a police station or other
premises or place for the purpose of being questioned
by a constable in connection with the offence.
Page 33
(2) The suspect has the right to have intimation sent to a solicitor
of any or all of the following –
(a) the fact of the suspect’s –
(i) detention,
(ii) attendance at the police station or other
premises or place, or
(iii) arrest,
(as the case may be),
(b) the police station or other premises or place where the
suspect is being detained or is attending, and
(c) that the solicitor’s professional assistance is required
by the suspect.
(3) The suspect also has the right to have a private consultation
with a solicitor –
(a) before any questioning of the suspect by a constable
begins, and
(b) at any other time during such questioning.
(4) Subsection (3) is subject to subsections (8) and (9).
(5) In subsection (3), ‘consultation’ means consultation by such
means as may be appropriate in the circumstances, and includes, for
example, consultation by means of telephone.
(6) The suspect must be informed of the rights under
subsections (2) and (3) –
(a) on arrival at the police station or other premises or
place, and
(b) in the case where the suspect is detained as mentioned
in subsection (1)(a), or arrested as mentioned in subsection
(1)(c), after such arrival, on detention or arrest (whether or
not, in either case, the suspect has previously been informed
of the rights by virtue of this subsection).
(7) Where the suspect wishes to exercise a right to have
intimation sent under subsection (2), the intimation must be sent by a
constable –
(a) without delay, or
(b) if 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 necessary.
(8) In exceptional circumstances, a constable may delay the
suspect’s exercise of the right under subsection (3) so far as it is
necessary in the interest of the investigation or the prevention of
crime or the apprehension of offenders that the questioning of the
suspect by a constable begins or continues without the suspect
having had a private consultation with a solicitor.
(9) Subsection (3) does not apply in relation to the questioning of
the suspect by a constable for the purpose of obtaining the
information mentioned in section 14(10) of this Act.”
Page 34
75. Section 4 of the Manual of Guidance on Solicitor Access (2011) produced
by the Association of Chief Police Officers in Scotland (“ACPOS”)in response to
the enactment of section 15A states:
“4.1 The [new section 15A] has been considered by many to be
one of the most significant changes in Scots law for generations and
the provision of solicitor access is at the heart of the change in the
law. The right to access is one which can be waived, but the greatest
of care must be taken if the suspect wishes to waive this right. Any
waiver of the rights of a suspect must be an ‘informed’ waiver, and
must be fully recorded.
4.2 To ensure all suspects are fully informed in their decision,
ACPOS consider that all suspects should be provided a specimen
form of words, standardised in a manner like the common law
caution, when offering a suspect their rights of solicitor access, as
follows:
‘You have the right to have a solicitor informed of
your detention/voluntary attendance/arrest. Do you
wish a solicitor advised of your detention?’
‘You also have the right to a private consultation
with a solicitor before being questioned by police
officers and at any time during questioning. Do you
wish a private consultation with a solicitor before
you are questioned?’
4.3 Both these questions must be asked.
4.4 If the answer to either of these questions is Yes, the suspect
should be advised of the following on each occasion:
‘If you know a solicitor, they can be contacted on
your behalf. Alternatively, another solicitor can be
contacted for you. Which do you prefer?’
‘Your right is to a private personal consultation
with a solicitor which can be in person or by
telephone. In the first instance you will be provided
the opportunity to speak with a solicitor by
Page 35
telephone to instruct them and seek advice. It is
then your decision if you need a further private
consultation with the solicitor.’
4.5 The foregoing questions and statement are contained in the
ACPOS Solicitor Access Recording Forms (SARFs).”
Two forms (respectively ACPOS SARF A and B) have been devised for the
purpose of recording in writing the responses of the suspect to these enquiries.
76. It should be acknowledged at the outset that compliance with these
arrangements will not suffice in every case. Where the suspect is a child or a
vulnerable adult, special arrangements may require to be put in place to ensure that
his or her Convention rights are respected, due regard being had to the youth or
vulnerability of the suspect in question. The Strasbourg jurisprudence also makes
plain that, where an adult is vulnerable, the seriousness of the crime or crimes
which he or she is suspected of having committed is also relevant. Where these are
of a particularly serious nature (with particularly serious potential consequences in
the event of a conviction) special care may be required to ensure that the suspect’s
rights are respected. I do not endeavour in this opinion to express any view on
what might be required in these special circumstances.
77. It has recently been observed by this court that a national court should not,
without strong reason, dilute or weaken the effect of Strasbourg case law; it is its
duty to keep pace with it as it evolves over time; there is, on the other hand, no
obligation on the national court to do more than that (Ambrose v Harris [2011]
UKSC 43, 2011 SLT 1005, per Lord Hope at para 17, referring to the observations
of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26,
[2004] 2 AC 323, at para 20). Lord Bingham had gone on to observe that it was
open to member states to provide for rights more generous than those guaranteed
by the Convention but that such provision should not be the product of
interpretation of the Convention by national courts.
78. Accordingly, the present task for this court is, by examination primarily of
Strasbourg jurisprudence, to identify as best it can the requirements which the
Strasbourg Court has set for the making of an effectual waiver of Convention
rights, and in particular of the right, implicit in article 6(1) as read with
article 6(3)(c), of access to legal advice prior to being questioned by the police as a
suspect at a police station. The broad context in which this task falls to be
undertaken is reasonably clear; the difficulty arises in the detailed application of
the relative principles.
Page 36
79. In Salduz v Turkey (2009) 49 EHRR 421 the Grand Chamber of the
Strasbourg Court held that “in order for the right to a fair trial to remain
sufficiently ‘practical and effective’ 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
…” (para 55).
80. In Cadder v HM Advocate this court held that, notwithstanding other
safeguards which Scots law and practice afforded a suspect in custody, application
of Salduz in Scotland required that such a suspect, before being questioned by the
police, have the right to be afforded legal advice (see especially per Lord Hope at
paras 48-51, Lord Rodger at paras 92-93 and Lord Brown at para 108).
81. The Strasbourg Court has repeatedly stated that the entitlement to the
guarantees of a fair trial afforded under article 6, including the right of access to
legal advice before questioning, can be waived, either expressly or tacitly (Salduz
para 59, citing Kwiatkowska v Italy (Application No 52868/99) (unreported) given
30 November 2000).
82. In Salduz at para 59 the Grand Chamber observed that “if it is to be
effective for Convention purposes, a waiver of the right to take part in the trial
must be established in an unequivocal manner and be attended by minimum
safeguards commensurate to its importance”. The Court had reiterated at para 50
that it did not follow from the terms of article 6 that that article had no application
to pre-trial proceedings. The Court did not, however, identify what these minimum
safeguards might be.
83. There have been a number of subsequent decisions of the Court touching on
the issue of the waiver of “Salduz rights”. I take them in chronological order.
84. In Plonka v Poland (Application No 20310/02) (unreported) given 31
March 2009 where the applicant signed a form acknowledging that she had been
informed of her rights, including the right to be assisted by a lawyer and the right
to refuse to testify (para 7), it was concluded that there had been no express waiver
of her right to be represented by a lawyer during police questioning (para 36). It
was observed, under reference to para 59 of Salduz, that the waiver must be
established in an unequivocal manner and be attended by minimum safeguards
commensurate to its importance (para 37). The court noted that one of the specific
features of the case was the applicant’s alcoholism and that she was in a vulnerable
position at the time of the interview; “… the authorities should have taken this into
account during questioning and in particular when apprising her of her right to be
assisted by a lawyer” (para 38). In these circumstances it was held that there had
been no effectual waiver.
Page 37
85. In Pishchalnikov v Russia (Application No 7025/04) (unreported) given
24 September 2009 – a case concerned with allegedly implied waiver – the
applicant had expressly requested legal advice but the questioning had proceeded
without such legal advice being made available – the Court (First Section)
acknowledged (para 77) that a person might of his own free will, either expressly
or tacitly, waive his article 6 rights. It continued:
“However, if it is to be effective for Convention purposes, a waiver
of the right must be established in an unequivocal manner and be
attended by minimum safeguards commensurate to its importance …
A waiver of the right, once invoked, must not only be voluntary, but
also constitute a knowing and intelligent relinquishment of a right.
Before an accused can be said to have implicitly, through his
conduct, waived an important right under article 6, it must be shown
that he could reasonably have foreseen what the consequences of his
conduct would be. …”.
That is, in a case where a Convention right had been invoked by the suspect – he
had made a specific request for legal assistance – a valid waiver of that right must
be not only voluntary but a “knowing and intelligent relinquishment”. The Court
continued at para 78:
“The Court considers that the right to counsel, being a fundamental
right among those which constitute the notion of fair trial and
ensuring the effectiveness of the rest of the foreseen guarantees of
article 6 of the Convention, is a prime example of those rights which
require the special protection of the knowing and intelligent waiver
standard. It is not to be ruled out that, after initially being advised of
his rights, an accused may himself validly waive his rights and
respond to interrogation. However, the Court strongly indicates that
additional safeguards are necessary when the accused asks for
counsel because if an accused has no lawyer, he has less chance of
being informed of his rights and, as a consequence, there is less
chance that they will be respected.”
The Court went on to hold (para 79) that on the facts it was not convinced that “the
applicant, in a knowing, explicit and unequivocal manner, waived his right to
receive legal representation during the interrogations …”.
86. In Yoldaş v Turkey (Application No 27503/04) (unreported) given
23 February 2010 the majority of the court (Second Section) noted (para 51) that
“in order to be effective for the purposes of the Convention any waiver of the right
Page 38
to take part in the trial must be established unequivocally and be surrounded by a
minimum of guarantees as to its seriousness”. At para 52 the majority said “…
while [the applicant] was entitled to legal assistance during his custody and
although he was reminded of this right, the applicant refused legal assistance. It
also clearly emerges from his statements taken whilst in custody that the interested
party’s decision to waive his right to legal assistance must be considered to have
been freely and voluntarily made.” The minority dissented in the first place on the
assessment of the particular circumstances saying:
“We feel that the majority too easily accepted that the applicant
voluntarily waived the guarantee of legal assistance.”
Its second ground of dissent that “[a]ny procedural choice that a person accused of
a crime who is held in custody may make without a lawyer being able to inform
and advise him cannot be free and informed” is clearly not settled Strasbourg law.
87. In Duman v Turkey (Application No 28439/03) (unreported) given
23 March 2010 – another case of purportedly express waiver – the Court referred
to the test in Poitrimol v France (1993) 18 EHRR 130 – a case concerning the
absence of the accused from his trial. The test for effectual waiver there identified
was that it must be established “in an unequivocal manner and be attended by
minimum safeguards commensurate to its importance” – see Poitrimol at para 31.
In addressing the particular circumstances (the incriminating statements and
participation in reconstructions of events all apparently preceded any purported
waiver) the Court said that it was “not convinced that the presence of an undated,
pre-printed and signed document in the case file demonstrates with certainty that
the applicant was properly informed of his right to a lawyer and his right to remain
silent” (para 50).
88. In Sharkunov and Mezentsev v Russia (Application No 75330/01)
(unreported) given 10 June 2010 the Court (First Section) held (at para 107) that
“the circumstances of the case disclose that the second applicant expressly and
unequivocally waived … the right to legal assistance …”. Emphasis was placed on
the contemporaneous recording of that waiver (para 104).
89. In Bortnik v Ukraine (Application No 39582/04) (unreported) given 27
January 2011 – another case of purportedly express waiver – the Court (Fifth
Section) said that to be effective for Convention purposes “a waiver of the right to
take part in the trial must be established in an unequivocal manner and be attended
by minimum standards commensurate to its importance” (para 40). Reference was
again made to Poitrimol. In Bortnik it was recognised that the applicant was afraid
of possible ill-treatment (para 41), suffered from chronic alcoholism and belonged
Page 39
to a socially disadvantaged group, factors which could lead to the conclusion that
he was particularly vulnerable, legally ignorant and susceptible to outside
influence (para 43). In these circumstances the Court found that the applicant’s
waiver of legal representation at the initial stage (when self-incriminating
statements had been made) was “not genuine” (para 44).
90. In Şaman v Turkey (Application No 35292/05) (unreported) given 5 April
2011 the applicant was of Kurdish origin and illiterate with limited knowledge of
Turkish. While held in Turkish custody she was, according to the Government,
before each questioning “reminded of her rights as an accused, including her right
to be assisted by a lawyer”; she had “refused legal assistance” (para 28). She
underwent questioning without such assistance. Although, according to the
Government, the applicant had refused legal assistance, the Court appears to have
treated the case as one of implied waiver by conduct – submitting to questioning
without legal assistance (see para 32, though compare para 33). The essence of the
Court’s decision (that there had been a violation of article 6) was that the
applicant, having an insufficient knowledge of Turkish and being without the help
of an interpreter, could not be said to have effectively waived the right to legal
assistance – whether expressly or tacitly.
91. This review of the Strasbourg jurisprudence would appear to suggest that
the relevant criterion, at least in the case of an express waiver, is whether the
waiver is established in an unequivocal manner and is attended by minimum
safeguards appropriate to its importance. This is the formulation used by the Grand
Chamber in Salduz and in all other cases in which the effectiveness of an express
waiver was in issue. In Pishchalnikov after recital of that criterion it was observed:
“A waiver of the right, once invoked, must not only be voluntary, but
must also constitute a knowing and intelligent relinquishment of a
right”.
But that was a case in which the applicant had specifically invoked his right to
legal assistance and the issue was whether, having subsequently responded to
questioning without having that assistance, he had impliedly waived his right to it.
The need to focus on a knowing and intelligent relinquishment of the right may be
more acute where the waiver is founded on an implication from conduct (in
particular, conduct apparently inconsistent with a prior specific request) rather than
on an express statement. The criterion, accordingly, against which the current
practice in Scotland is, in my view, to be judged is whether the waiver is in an
unequivocal manner and is attended by minimum safeguards commensurate to its
importance.
Page 40
92. I acknowledge immediately that the right to legal assistance for the
purposes of police interview is important. This is not limited to protection against
the making of self-incriminating responses. As Mr Scott pointed out, there will be
cases in which it is in the interests of a suspect to give a full and early account of
matters; this may, if consistent with his account at trial, support his credibility. On
the other hand, an account at trial which is inconsistent with the suspect’s
responses to the police at interview may damage his credibility as a witness at his
trial. Legal advice as to whether to respond may be of real importance in relation
to any subsequent trial.
93. I also recognise that quite apart from any bullying or other coercive conduct
by the police at interview (against which the common law provides its own
safeguards) presence as a suspect in police custody may, for some at least, be an
intimidating experience. Mr Scott, under reference to para 53 of Salduz and
para 68 of Pishchalnikov emphasised the importance of equality of arms between
investigating authorities and the accused. The suspect faced with questioning by
the police in the absence of legal assistance of any kind may be at a disadvantage
as against his questioners. It should not too readily be concluded that there has
been an effective waiver of such assistance. There should, accordingly, be close
scrutiny of cases where it is asserted that there has been such waiver. Such scrutiny
by the Strasbourg Court is clear from consideration of the cases which have come
before it.
94. Where the alleged waiver is express and is contemporaneously recorded in
writing or in some other form, it should not be difficult to decide whether the
waiver is unequivocal or not. Provided the language used to inform the suspect of
the right to legal assistance is simple and the subsequent enquiry as to whether or
not the suspect wishes to exercise his or her right is likewise simply expressed, it
should not in the ordinary case be difficult to conclude that the suspect has
understood what he or she has been told and has responded to the enquiry with an
understanding of what has been put to him or her. The natural and legitimate
inference in circumstances where the suspect has responded with a clear negative
to the enquiry will be that he or she has a proper understanding, including an
appreciation that in light of his or her answer legal assistance will not be made
available for the purposes of the interview. Where the suspect is a child or an adult
who is vulnerable (whether because of mental difficulties, addiction to
incapacitating substances or otherwise) additional safeguards may be required.
Indeed the circumstances of such individuals may in some cases be such that a
waiver of the right to legal assistance is not in practical terms possible. Special
measures for such persons may be part of the minimum safeguards required. Other
safeguards include, as mentioned above, that the information given and the
question asked are simply expressed and the answer recorded contemporaneously.
It is also to be expected – and in the absence of indications to the contrary to be
Page 41
assumed – that the oral communications to the suspect are clearly and deliberately
expressed, not mumbled or rushed.
95. In my view both the statement as to the suspect’s right to legal assistance
and the question posed as to whether he wishes to exercise that right as set out in
SARF A are clearly expressed. A negative answer to the question, duly recorded,
will give rise in ordinary circumstances to the conclusion that the suspect has
unequivocally waived his or her right to have legal assistance for the purposes of
the prospective questioning. The safeguards include the contemporaneous
recording of the whole procedure, including the names and ranks of the officer
reading the statement and of the corroborating officer, and the informing of the
suspect that signing the record in no way prevents him from changing his mind at
any time. Provision is then made for the suspect’s signature. There is, in my view,
nothing in Strasbourg jurisprudence in so far as developed to date which lays down
more demanding minimum safeguards than are provided for in this procedure.
96. That is not to say that the procedure could not be improved. A number of
suggestions in that regard were made in the hearing before us. Lord Hope
discusses these in his judgment. With his observations I agree. I also agree with his
proposed disposal of this reference. The issue of whether or not it would be fair for
the Crown to lead and rely upon the respondent’s answers at interview is, in my
view, best decided in the whole relevant circumstances by the sheriff, informed by
the judgments delivered in this court.
LORD KERR
97. Once again, regrettably, I find myself in disagreement with my colleagues
about the impact of article 6 of the European Convention on Human Rights and
Fundamental Freedoms on the right of suspects in Scotland to legal advice in
advance of and during interview by police officers. At the outset, however, I
should make clear that I agree with Lord Hope that there is no absolute rule to be
deduced from Strasbourg jurisprudence to the effect that, in order to make a valid
waiver of the right to be advised by a lawyer, a person under interrogation by a
police officer must have received legal advice on whether he should waive the
right.
98. What Strasbourg jurisprudence makes unmistakably clear, however, is that
this is a right of supreme importance and that such a right can only be regarded as
waived where the waiver is indubitably given and the consequences of giving it are
properly understood. Various formulae have been used to express this principle.
Thus statements have been made that the waiver must be “knowing and
Page 42
intelligent” or “informed” – Pfeifer and Plankl v Austria (1992) 14 EHRR 692;
Pishchalnikov v Russia (Application No 7025/04) (unreported) given 24
September 2009; that it must be “unequivocal” – Oberschlick v Austria (1991) 19
EHRR 389; Kolu v Turkey (Application No 3581/97) (unreported) 2 August 2005;
Sejdovic v Italy (2004) 42 EHRR 360; Pishchalnikov v Russia; that the person
purporting to make the waiver must have reasonable foresight of the consequences
of the relinquishment of the right – Jones v United Kingdom (2003) 37 EHRR
CD269; and that it must be accompanied by safeguards commensurate with the
importance of the right to access to legal advice – Salduz v Turkey (2008) 49
EHRR 421; Pishchalnikov v Russia.
99. In para 15 of his judgment Lord Hope has said that rights which are waived
may vary in importance according to the circumstances of each case. This is, of
course, true but, in my view, Strasbourg jurisprudence is clear that, whatever the
level of importance of the right, it can only be waived if the person waiving it has a
proper understanding of the implications of the waiver. I do not understand Lord
Hope’s suggestion (in para 16) that care is required when considering cases where
the right was different from the right to legal assistance to imply that anything less
than an understanding of the nature of the right and the possible repercussions of
its waiver will suffice for it to be effective.
100. In any event, there can be no doubt as to the fundamental importance of the
right to counsel. Strasbourg has repeatedly made this clear – see for instance para
78 of Pishchalnikov where it was stated that the right to counsel was “a
fundamental right among those which constitute the notion of a fair trial and
ensuring the effectiveness of the rest of the foreseen guarantees of article 6 of the
Convention”. The right, according to the court was, “a prime example of those
rights which require the special protection of the knowing and intelligent waiver
standard”.
101. The necessary level of understanding on the part of a person waiving a right
of the consequences of the waiver has perhaps not been as explicitly spelled out as
it might have been in the many cases in this area which Lord Hope has so fully
reviewed. Perhaps the best statement on the question is to be found in Millar v
Dickson 2002 SC (PC) 30. At para 33 of his opinion Lord Bingham set out a series
of propositions which, he said, formed the basis of the High Court’s finding that
there had been a tacit waiver of the right to be tried by an independent and
impartial tribunal. The second of the propositions was this: “If knowledge of some
material matter is absent, even an express intention to waive a right may readily be
recognised as insufficient to constitute a binding abandonment of the right”. Lord
Bingham, in para 34, accepted the correctness of this proposition. He expressly
rejected the third proposition which the High Court had set out. It was to this
effect: “In general, regardless of the knowledge or ignorance or misapprehension
of an accused or his agent as to the law, knowledge of the law will be imputed to
Page 43
him”. Of that statement, Lord Bingham said that “ignorance of the law will not
excuse unlawful conduct; but it cannot suffice to found a plea of waiver” – para
34.
102. Knowledge of all material matters is therefore a prerequisite to a valid
waiver and if the person waiving the right is ignorant of a salient aspect of the law,
this will prevent the waiver from being effective. It was somewhat faintly
suggested by the Lord Advocate that knowledge of the consequences of waiving a
right was required only in cases of tacit or implied waiver. There is no logical basis
for distinguishing express waiver from implied waiver in relation to this
requirement. It was not suggested that an express waiver should be regarded as
effective unless it was properly informed. In this context, being informed must
mean being aware of what will or might happen if the right is not availed of. As
Lord Hope said at para 58 of Millar, “Strasbourg jurisprudence shows that, unless
the person is in full possession of all the facts, an alleged waiver of the right …
must be rejected as not being unequivocal”. Mere possession of the facts is not
enough, of course. A clear understanding and insight as to their significance is
surely an essential concomitant. It is not enough that an accused person receive
information, he must have the wherewithal to understand what that information
means to his case. Otherwise, the information is of no value.
103. All of this must be seen against the accepted position that it is for the
prosecuting authorities who seek to rely on an alleged waiver to establish that it is
effective. They must show not only that the accused person was made aware of his
right to legal counsel; not only that he or she had stated that he did not wish to
avail of it – or, alternatively, implicitly waived their entitlement to it; not only that
he or she was given sufficient information about the circumstances in which legal
assistance could be provided; but also that the accused person appreciated what
was at stake. Obviously, direct evidence of the degree of understanding of the
accused person will not usually be available. Conventionally, the prosecuting
authorities will seek to establish this by reference to the safeguards that are in
place to ensure that this had happened and it is no coincidence that Strasbourg
jurisprudence emphasises the need for the presence of safeguards “commensurate
with the importance of the right”.
104. Before turning to the safeguards which, the Lord Advocate claims, were
efficacious to achieve that, I should say something about the assertion of Miss
Cherry QC on his behalf that the “narrow base” of the decision in Salduz should
inform the debate as to whether the safeguards are sufficient. The “narrow base”
from which Salduz rights are derived is, Miss Cherry contends, the need to protect
the suspect from self-incrimination. The rationale underlying the protection against
self-incrimination is one of protecting the suspect from coercion of his will by
improper compulsion (physical or psychological) by the police authorities. That
rationale – of protecting the suspect against coercion of his will – provides the
Page 44
context against which the ECtHR’s requirements that a waiver of Salduz rights be
unequivocal and be attended by “minimum safeguards commensurate to its
importance” should be construed and applied, according to Miss Cherry.
105. I do not accept these arguments. At para 52 of the Salduz judgment the
court said:
“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.”
106. Now, true it is that in Scotland there is no statutory provision such as exists
in the rest of the United Kingdom expressly permitting the tribunal of fact to draw
adverse inferences against an accused because of his or her failure to mention in
answer to police questioning facts on which they later relied. But it is not claimed
that an accused who seeks to put forward on trial in Scotland a basis of defence
that was not foreshadowed in his interviews with the police would not suffer a
conspicuous disadvantage in consequence. Moreover, in Scotland, where
corroboration of evidence that a sexual offence has been committed is necessary, a
statement by an accused person that there was consensual sexual activity may
supply (and, we were given to understand, frequently does supply) the needed
corroboration. This is a paradigm example of national laws attaching consequences
to the attitude of an accused at the initial stages of the investigation which have
nothing whatever to do with his will being overborne by coercion. And it is clear
that it was precisely this type of situation that was contemplated by the court in
Salduz when it emphasised the importance of the need for access to legal advice at
the early stage of the investigation.
107. The “narrow base” argument is therefore plainly wrong. The need for a
lawyer at the early stage of an investigation goes well beyond protecting the
suspect from coercion of his will by improper compulsion. This much is
unmistakably clear from what the court said in Salduz at para 54:
“… 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 tria1. 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
Page 45
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.” (emphasis supplied)
108. The efficacy of safeguards to ensure that a waiver of the fundamental right
to legal assistance is effective is therefore not to be judged solely by reference to
the need to protect a suspect from coercion of his will by improper compulsion. It
must be judged against the backdrop of his need to understand the ways in which
the absence of a lawyer might have an impact on the viability of his defence to
criminal charges about which he is questioned by police.
109. The advocate depute relied on the safeguards which currently exist under
Scots law and which, she said, were commensurate with the importance of the
right to legal assistance. These included the administration of the caution which,
Miss Cherry pointed out, occurred at various stages of the arrest and interview
process. Nothing in the caution advises the suspect of his or her rights to the
services of a lawyer, however. Its focus is on conveying to the suspect the right to
remain silent. In June 2010, pending the judgment of this court in Cadder v HM
Advocate, the Lord Advocate issued guidelines to Chief Constables in Scotland as
to the steps to be taken to provide a suspect with access to a solicitor prior to and
during interview. The guidelines provided that individuals who attended
voluntarily for interview by police, or were detained under section 14 of the
Criminal Procedure (Scotland) Act 1995 for that purpose, or were interviewed by
police between arrest and charge should first be offered (a) a private consultation
with a solicitor prior to interview; and (b) solicitor presence/consultation during
the interview. The Lord Advocate’s Guidelines were withdrawn in January 2011 to
coincide with the introduction of a new ACPOS Manual of Guidance on Solicitor
Access. Nothing in these guidelines was directed to an investigation of the
suspect’s understanding of the reasons that he might need to have a solicitor. Nor
were they designed to elicit information about why a suspect might choose not to
have a solicitor. Nor did they contain any means of discovering whether the
suspect had any appreciation of the implications of waiving his right to a solicitor.
The procedure that they prescribed consisted of a one-way form of communication
with the suspect contributing only an affirmative or negative response to the
imparting of the information that he was entitled to have a solicitor.
110. The capacity of the caution and the guidelines to supply safeguards
commensurate with the right to legal assistance is intrinsically open to question
given the absence of meaningful contribution to the process by the suspect. But the
obvious shortcomings of this procedure are demonstrated by research carried out
by David J Cooke and Lorraine Philip in 1998 about the level of understanding of
suspects of even basic elements of the procedure then adopted by police officers.
Although, as Lord Hope has pointed out, this paper was written some time ago and
does not reflect current practice in that the caution then used has been changed, the
Page 46
effect of the results of the survey on the adequacy of the up to date procedure is
unmistakable.
111. The Cooke and Philip research showed that the question customarily posed
after the caution had been administered, viz “do you understand” was valueless
because of the tendency of suspects to acquiesce without any real level of
understanding. That was troubling enough but overall it was found that there was a
poor level of comprehension of the simple caution and, even when this was broken
down into the simplest of sentences, the level of understanding remained low. The
conclusions of the report are sobering:
“… it would appear that within Scotland a significant proportion of
young offenders are unlikely to comprehend their legal rights when
these are presented to them in the form of the common law caution.
If the purpose of reciting the caution is to truly inform an accused
person of his/her rights rather than merely to record some legal
niceties then a simplified caution is required. Simplifying the caution
may not be sufficient (Scott, 1996): police officers require to be
trained to deliver the caution more effectively.”
112. No challenge to the validity of these findings has been presented nor has it
been suggested that they are not eminently relevant to contemporary experience.
There is therefore no reason to suppose that today’s suspects will be any more able
to appreciate the importance of the right to legal assistance, much less the
implications of relinquishing that right, in light of these findings. Certainly, in the
absence of any inquiry whatever (whether of the suspect directly or, if they are
capable of revealing it, by examination of the surrounding circumstances) as to
why a suspect has decided to waive the right, it is, in my opinion, simply
impossible to say that an intelligent, knowing decision has been made.
113. The Criminal Procedure (Scotland) Act, 1995 was amended with effect
from 30 October 2010 and this now provides for the right of a suspect to have a
private consultation with a solicitor before and during questioning by a police
officer. The suspect must be informed of this right but there is nothing in the
legislation nor in the ACPOS Manual of Guidance on Solicitor Access which
requires any contribution from the suspect beyond confirming that he understands
that he has the right and indicating whether he wishes to avail of it.
114. Lord Hope has made suggestions (in paras 49, 51 of the judgment in
McGowan) as to how the current procedures might be improved. The first of these
is to follow the practice indicated by para 6.5 of Code C of the Code of Practice for
the Detention, Treatment and Questioning of Persons by Police Officers which was
Page 47
introduced in England to meet the requirements of the Police and Criminal
Evidence Act 1984 (PACE). This requires a police officer to tell a suspect that he
can speak to a solicitor by telephone if has refused initially to seek legal assistance.
If the suspect continues to waive the right the police officer is then enjoined to ask
the reason for this and to record the suspect’s reply.
115. There are two obvious purposes behind these requirements in the Code.
The first is to dispel the well known and widespread apprehension that suspects
feel that if they elect to consult a solicitor this will delay their interview and
prolong the period of their detention. The second is to obtain some insight into the
reasons for not wishing to have the assistance of a lawyer so that
misunderstandings can be corrected. Lord Hope makes it clear that he is not
suggesting that these steps be taken in every case but, with respect, why should
they not be? How can one have any insight into the reasons for waiving this
fundamentally important right, if one does not ask why? If the decision to waive
must be knowing and intelligent – and, more pertinently, if the prosecuting
authorities must be in a position to prove that it was such – how can that be
established if a bland refusal is all that one has to work on? Put simply, unless one
knows why the decision to waive has been made, it cannot be said to be
“voluntary, informed and unequivocal”.
116. I can further explain my conclusion that some means of ascertaining why a
suspect has chosen not to consult a solicitor is vital by reference to those cases
emanating from Strasbourg post-Salduz where this issue has been considered.
First, Pishchalnikov at para 77 where the court said:
“A waiver of the right, once invoked, must not only be voluntary, but
must also constitute a knowing and intelligent relinquishment of a
right. Before an accused can be said to have implicitly, through his
conduct, waived an important right under article 6, it must be shown
that he could reasonably have foreseen what the consequences of his
conduct would be.”
117. Of course, that statement was made in the context of implied waiver but for
the reasons given earlier, foresight of the consequences, if it is necessary in the
case of implied waiver, is equally required where the waiver is said to be express.
It is interesting to note the two overlapping aspects of the requirement –
knowledge and intelligence on the one hand and reasonable foresight of the
consequences on the other. The suspect must know what he is doing; he must be
possessed of sufficient intelligence to appreciate the importance of the step that he
is taking; and he must have reasonable foresight of the consequences for him of
doing it. Miss Cherry suggested that the last requirement was fulfilled merely by
the suspect knowing that he would be asked questions by police officers and that
Page 48
his solicitor would not be present. That surely cannot be right, if the knowing and
intelligent element is to have any significance. I do not suggest that a suspect
needs to be aware of every legal nuance that might arise in the course of his
interview but he should be aware in a general sense that legal issues might arise
and should have consciously decided that he is prepared to forgo the advice that a
lawyer might give on those issues either before or in the course of the interview.
118. In Yoldaş v Turkey (Application No 27503/04) (unreported) given 23
February 2010, the court held that the applicant had effectively waived his right to
legal assistance. A careful review of the facts of this case is instructive. The
applicant was 29 years old at the time of his arrest. After the charges were read to
him he was required to sign a form which confirmed that he had been advised of
his right to assistance by a lawyer of his choice or a court-appointed lawyer. This
happened more than 36 hours after he had been received into the custody of the
Turkish police. Mr Yoldaş was asked whether he wished to have his family
informed but he said that he did not want them to be contacted until he had
appeared before the court. A document containing the handwritten note of this
request by the applicant as well as his signature was produced to the court and was
not disputed by him.
119. On 24 December 2003, some six days after Mr Yoldaş had been taken into
custody, the applicant’s deposition was drawn up. According to this document, the
applicant’s right to remain silent, to have his relative informed, to the assistance of
a lawyer and to bring the matter before a judge in order to object to his arrest and
his custody were repeated to him. He stated that he was sorry and wished to benefit
from law No 4959 of 29 July 2003 concerning reintegration in society. He signed
his deposition thus drawn up. On the same date the applicant was referred to the
Public Prosecutor, who informed him of his rights as stated in article 135 of the
Code of Criminal procedure. Significantly, the applicant stated that he understood
his rights and did not wish to be assisted by a lawyer or for his family to be
informed of his situation. He confirmed his statement made in custody,
acknowledged belonging to the organisation in question and having participated in
activities as part of this, including armed attacks. He declared that he wished to
benefit from the law on repentance. He signed the deposition.
120. Later on the same date, 24 December 2003, Mr Yoldaş appeared before a
judge. He was reminded by the judge of his right to legal assistance. The applicant
again stated that he understood his rights but did not wish to be assisted by a
lawyer and made his deposition alone. He repeated his previous depositions and
signed the deposition made before the court. Mr Yoldaş had been informed or
reminded therefore on no fewer than four occasions of his right to a lawyer. This
information had been imparted to him by police officers, a public prosecutor and a
judge. He twice asserted that he knew and understood what his rights were. He
was clearly familiar with the law on repentance and re-integration into society. It is
Page 49
clear that these particular circumstances bore heavily on the decision of the
European Court that there had been an effective waiver of the applicant’s rights to
legal assistance. This is especially clear from the opening words of para 52 of the
court’s judgment:
“Under the particular circumstances of this case, the Court notes
that the applicant had been informed of his right to be assisted by a
lawyer whilst in custody. In this connection the police drew up a
report stating his rights during custody, and in particular that of
being assisted by a lawyer (paragraph 6 above). After reading the
report, a copy signed by the applicant was delivered to him.
Furthermore, the police also reminded the interested party that he
was entitled to see his family. The applicant stated that he wished to
contact his family after appearing before the competent court
(paragraph 7 above). Therefore while he was entitled to legal
assistance during his custody and although he was reminded of this
right, the applicant refused legal assistance. It also clearly emerges
from his statements taken whilst in custody that the interested party’s
decision to waive his right to legal assistance must be considered to
have been freely and voluntarily made. Hence, the applicant’s waiver
of this right was unequivocal and surrounded by a minimum
guarantee (a contrario, Padalov v Bulgaria, No 54784/00 para 54,
10 August 2006).” (Emphasis supplied)
121. Lord Hope has said (in para 32 of his judgment in McGowan) that this
decision indicates that where it is shown that the accused, having been informed of
his rights, states that he does not want to exercise them, his express waiver of those
rights will normally be held to be effective. I do not so read it. Certainly no
statement to that effect is to be found in the text of the judgment and it is replete
with references to the importance of the particular facts of the case – see paras 48,
50, 52, 53 and 54.
122. In Galstyan v Armenia (2007) 50 EHRR 618 the European Court found that
the applicant had been informed of his right to a lawyer both by police officers and
the judge before whom he appeared. The applicant had chosen to represent himself
– this was a specific finding of ECtHR – para 91. It was the government’s case that
he had been advised by police to avail of the services of a lawyer but stated that he
did not wish to have one – para 16. The applicant was an authorised election
assistant for the main opposition candidate in the presidential election and, when
he appeared before the judge, was sufficiently robust to demand “justice and
lawfulness” when asked by the judge what he wanted. There is nothing in the
report which suggests that the presence of a lawyer would have made a significant
difference to the outcome. This is a case from which, I think, it would be difficult
to discern any principle of general application.
Page 50
123. In Sharkunov and Mezentsev v Russia (Application No 75330/01)
(unreported) given 10 June 2010, (referred to by Lord Hope in para 33 of his
judgment in McGowan) the first applicant made no statement or admissions after
his arrest, and the court did not consider it necessary to make findings in his case
on his complaint that there had been a violation of article 6 because he had been
denied legal assistance. So far as the second applicant was concerned, the court
found that he had waived his right to legal assistance, and had expressly said that
the waiver was not related to a lack of financial means. Subsequently, when he
asked for legal assistance, this was obtained promptly. Significantly, he did not
complain that he was not provided with legal assistance between December 1999
and February 2000. And the court found (see para 108) that the case file did not
disclose that the second applicant made any statement or admission between those
dates. Again, this is a case that is confined to its own facts and upon which no
principle of general application can be founded.
124. Paskal v Ukraine (Application No 24652/04) (unreported) given 15
September 2011 was a case in which the facts were somewhat unusual. The
applicant had a university degree in law. When under interrogation he was a
serving police officer. He had been arrested on suspicion of having taken part in a
robbery. He signed a procedural rights notification form and noted that he wished
to appoint a lawyer whom he named as his advocate. He was then questioned,
without a lawyer being present, about the robbery. It was argued that this was a
case of an implied waiver. Most significantly, of course, the applicant, when
questioned without a lawyer, did not make any incriminating statements – see para
75 of the judgment. The court also observed in that paragraph that because of the
applicant’s educational and professional background as a lawyer and a police
officer, his participation in the questioning was rather well-informed and
deliberate.
125. In para 76 of Paskal ECtHR stated that 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, citing
Salduz para 55. It also stated that the very fact of restricting access of a detained
suspect to a lawyer may prejudice the rights of the defence even where no
incriminating statements were obtained as a result. These are strong statements
which, unlike the cases of Yoldaş, Galstyan and Sharkunov and Mezentsev, do
have general import. The principle to be derived from them is clear. As a general
rule, incriminating statements given during police interrogation where there has
not been access to a lawyer irretrievably prejudice the rights of the defence when
they are used to obtain a conviction. But the court’s disapproval of the adducing of
evidence given by a suspect who has not had the benefit of legal assistance did not
stop there. At para 79 the court said that “the very fact of questioning a suspect
without enabling him to consult a lawyer may shift the power balance between the
parties in breach of the fair trial guarantees even absent any appearance of negative
Page 51
consequences for the outcome of the proceedings”. This sends a powerful
message. It emphasises the exceptionality of the circumstances in which
statements made by suspects who have not had access to a lawyer should be
admitted in evidence.
126. Now, as it happens, the European Court in Paskal decided that there had
been an effective waiver of the right to legal assistance and it is on that aspect of
the decision that Lord Hope has concentrated. But I suggest that this conclusion
reflects the particular, and somewhat unusual, facts of the case and of far greater
significance are the expressions of general principle which it contains and which I
have referred to above. It was because the applicant never raised the matter of the
lack of legal assistance during his trial and because, although he complained in his
cassation appeal in general terms that his right to defence had been breached, he
made no express mention of the questioning that took place in the absence of legal
assistance that the court considered that a breach of article 6 had not been
established. The court was also influenced, to some extent, by the applicant’s
background as a law graduate and police officer – see paras 78 and 79 of the
judgment. But these are, as I have said, unusual facts. They do not remotely sound
on the issues that arise in these appeals and reference. They are peculiar to that
particular case. Paskal is a significant case, however, but significant in my view in
favour of the arguments advanced on behalf of the respondents in the appeal and
on behalf of B in the reference.
127. It is not particularly easy to assemble a list of coherent principles that
should guide consideration by courts of the difficult question of waiver of the right
to legal assistance. With some misgivings, I suggest that the following are, while
by no means exhaustive, perhaps useful guidelines to follow:
i) Each case must be examined on its own particular facts. Close
scrutiny of the claim that the right has been waived will always be required.
Among the circumstances that will be relevant are the gravity of the offence
and the sensitive nature of the charges;
ii) The background of the suspect may be relevant, especially if it
includes an expertise in legal matters but it should not be assumed that
previous experience with police procedures will make it more likely that a
waiver is effective;
iii) Unless it is shown that the suspect had a proper insight into the
significance of the decision to waive his right, the purported waiver should
not be regarded as effective; the most obvious and easiest way of showing
Page 52
this is when the suspect has been advised by a lawyer as to whether he
should waive the right;
iv) A decision to waive the right which is prompted by a desire to get the
interview over with or because the suspect does not wish to wait for his
solicitor to arrive or because he erroneously believes that he may have to
pay for the services of a solicitor are all strong indicators that the waiver is
not unequivocal;
v) Unless there is clear evidence that the suspect understands the
significance of waiving his right to a solicitor, he should be asked why he
has decided not to exercise his right; his reasons should be recorded; and
any misunderstanding should be corrected. He should also be informed that
a telephone consultation with a solicitor can be arranged. (These minimum
safeguards were not present in any of the cases under appeal or the subject
of the reference);
vi) Simply because a suspect evinces a willingness to answer questions,
it is not to be presumed that he has tacitly waived his right to access to legal
advice.
Conclusions
128. I would answer the first question in the negative for the reasons given by
Lord Hope. I would answer the second question in the negative also. No attempt
was made to discover why B had refused to avail of the legal assistance. I consider
that it is impossible to say on the available evidence that his was an unequivocal
and informed decision to waive his right under article 6.
129. In para 58 of his judgment, Lord Brown suggests that it is surely obvious
that the point of a lawyer is to advise on any legal issues that may arise and that it
is also obvious that if a suspect chooses to forego this right he will be questioned
without the benefit of such advice. I agree. But knowledge of the obvious is not the
same as understanding that this may carry grave implications for the suspect.
Otherwise there would be no need for any examination of the circumstances in
which a suspect has declined to avail of legal assistance. His statement that he did
not wish to have a lawyer would determine the issue. He would be presumed to
know the obvious and that would be, in Lord Brown’s view, an end of the matter.
With respect to Lord Brown, to seek to be sure that the suspect realises that he is
foregoing the chance to have a lawyer advise him on legal issues that might bear
directly on his defence does not seem to me to ask for too much.
