JUDGMENT
Jude (Respondent) v Her Majesty’s Advocate
(Appellant) (Scotland)
Hodgson (Respondent) v Her Majesty’s Advocate
(Appellant) (Scotland)
Birnie (Respondent) v Her Majesty’s Advocate
(Appellant) (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 (HM Advocate) Respondent (Birnie)
Joanna Cherry QC Christopher Shead
P Jonathan Brodie QC
Kenneth J Campbell QC
Douglas Fairley
Moira Mackenzie
Andrew Mason
(Instructed by The
Appeals Unit, Crown
Office)
(Instructed by Drummond
Miller LLP)
Appellant (HM Advocate) Respondent (Hodgson)
Joanna Cherry QC Christopher Shead
P Jonathan Brodie QC
Kenneth J Campbell QC
Douglas Fairley
Moira Mackenzie
Andrew Mason
(Instructed by The
Appeals Unit, Crown
Office)
(Instructed by Drummond
Miller LLP)
Appellant (HM Advocate) Respondent (Jude)
Joanna Cherry QC Christopher Shead
P Jonathan Brodie QC
Kenneth J Campbell QC
Douglas Fairley
Moira Mackenzie
Andrew Mason
(Instructed by The
Appeals Unit, Crown
Office)
(Instructed by Drummond
Miller LLP)
Page 2
LORD HOPE
1. The respondents to the Lord Advocate’s appeal in these three cases are
Raymond Jude, Michael Hodgson and Josh Birnie. They were each detained as
suspects for questioning at a police station under sections 14 and 15 of the
Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the
decision of this court in Cadder v HM Advocate [2010] UKSC 43, 2011
SC(UKSC) 13; [2010] 1 WLR 2601. As was the practice at that time, they did not
have access to legal advice either before or during their police interviews. In the
course of their interviews they said things in reply to questions put to them by the
police on which the Crown relied at their trials. They were convicted and
sentenced to various periods of imprisonment. They then appealed against these
convictions. Their appeals were still current when the judgment in Cadder was
delivered on 26 October 2010.
2. Among other grounds of appeal in the High Court of Justiciary the
respondents advanced submissions which raised a devolution issue. This was that
the leading of evidence of statements which they made during their police
interviews was a breach of their rights under articles 6(3)(c) and 6(1) of the
European Convention on Human Rights and that, in terms of section 57(2) of the
Scotland Act 1998, the Lord Advocate had no power to lead that evidence. They
referred to the decision in Cadder in support of this ground of appeal. For Birnie it
was also submitted that the reliance by the Crown upon his admissions in these
circumstances deprived him of a fair trial, to which he was entitled under article
6(1) of the Convention and at common law. The Crown’s response to these
submissions was that, for various reasons, the principle that was established in
Cadder did not apply in these cases. The High Court of Justiciary decided to deal
with this response as a preliminary issue, and it was referred to a court of five
judges. On 11 May 2011 the Appeal Court (the Lord Justice-Clerk (Gill) and Lords
Osborne, Eassie, Clarke and Mackay of Drumadoon) repelled the Crown’s
objections and continued the appeals for hearing on the remaining grounds of
appeal: [2011] HCJAC 46, 2011 SLT 722. The Crown was given leave to appeal
against that decision to this court under para 13 of Schedule 6 to the Scotland Act
1998.
3. The issues raised by the Crown’s response to the devolution issue were as
follows: (1) that in the case of each respondent section 118(8) of the Criminal
Procedure (Scotland) Act 1995 was an absolute bar to any challenge to the
evidence of the police interviews, as objection was not taken at or before the trial
to the leading of that evidence; (2) that each of the respondents had waived their
right of access to a lawyer when they were interviewed; (3) that by failing to object
Page 3
to the evidence through their respective legal representatives they had waived the
right to take the point as a ground of appeal; and (4) in Jude’s case only, that the
point had been taken too late as section 100(3B) of the Scotland Act 1998, as
amended by section 1 of the Convention Rights Proceedings (Amendment)
(Scotland) Act 2009, provides that any proceedings brought on the ground that an
act of a member of the Scottish Executive is incompatible with the Convention
rights must be brought before the end of the period of one year beginning with the
date on which the act complained of took place.
4. The Crown did not seek leave to appeal from the Appeal Court’s decision in
relation to the application of section 118(8) of the 1995 Act. Leave was sought and
granted in relation to the issues of waiver and the application to Jude’s case of
section 100(3B) of the Scotland Act. In his written case to this court the Lord
Advocate made it clear that he did not intend to pursue the point that the
respondents had waived their right to object to the admissibility of the evidence of
the police interviews because their legal representatives did not object to that
evidence at the trial. This was because he accepts that, at the time when the
respondents were tried, a person who was detained under section 14 of the 1995
Act did not have an express right in Scots law to legal advice before or during his
police interview. As for the issue of individual waiver, his position was that the
only point in these appeals which was likely to be of importance for future cases
was that raised in the case of Birnie. Unlike the other two respondents Birnie made
an unsolicited statement following his police interview, having declined the
opportunity to have access to a lawyer prior to and while making it.
5. The advocate depute, Miss Cherry QC, confined her submissions about
waiver in these three cases to the question whether Birnie waived his right to a
lawyer when he made his unsolicited statement. She made no submissions in
support of the proposition that the respondents had waived their right to a lawyer at
their police interviews. That issue was however the subject of detailed submissions
in the Lord Advocate’s reference in McGowan (Procurator Fiscal, Edinburgh) v
B, which was heard at the same time as these appeals. The court has issued a
separate judgment in that case: [2011] UKSC 54.
6. In the result the only matters which remain for consideration in relation to
these three appeals are (1) whether the time bar referred to in section 100(3B) of
the Scotland Act 1998, as amended, applies to Jude’s appeal, (2) whether Birnie
waived his right of access to a lawyer when he made his unsolicited statement
following his police interview and (3) whether the reliance by the Crown upon his
admissions in these circumstances deprived him of his right to fair trial under
article 6(1) of the Convention. No issue now arises in regard to the preliminary
points that were taken by the Crown in Hodgson’s appeal.
Page 4
Section 100(3B)
7. Jude went to trial in the High Court of Justiciary at Aberdeen on an
indictment which libelled one charge of breach of the peace, one charge of lewd
and libidinous conduct, three charges of indecent assault and two charges of
assault with intent to rape. On 5 June 2008 he was convicted of one charge of
indecent assault and of both charges of assault with intent to rape. On 28 August
2008 he lodged a notice of his intention to appeal against his conviction. On 17
February 2009 his appeal was deemed to have been abandoned because his note of
appeal had not been lodged within the period referred to in section 110(1)(a) of the
1995 Act. On 5 October 2010 he lodged an application for extension of time under
section 111(2) of that Act along with a note of appeal. His application for
extension of time was granted on 6 October 2010 and his note of appeal was
received on the same date. It is plain, and not disputed, that the time bar which
would have otherwise have applied under section 110 of the 1995 Act was
removed when the Appeal Court decided on 6 October 2010 to grant Jude’s
application for an extension of time under section 111(2).
8. At the end of his judgment in Cadder Lord Rodger drew attention to the
provisions of section 100 of the Scotland Act, as amended by the Convention
Rights Proceedings (Amendment) (Scotland) Act 2009: 2011 SC(UKSC) 13, paras
104-106. In its amended form, the relevant provisions of that section are as
follows:
“(1) This Act does not enable a person –
(a) to bring any proceedings in a court or tribunal on the ground that
an act is incompatible with the Convention rights, or
(b) to rely on any of the Convention rights in any such proceedings,
unless he would be a victim for the purposes of article 34 of the
Convention (within the meaning of the Human Rights Act 1998) if
proceedings in respect of the act were brought in the European Court
of Human Rights.
…
(3) This Act does not enable a court or tribunal to award any
damages in respect of an act which is incompatible with any of the
Page 5
Convention rights which it could not award if section 8(3) and (4) of
the Human Rights Act 1998 applied.
(3A) Subsection (3B) applies to any proceedings brought on or after
2 November 2009 by virtue of this Act against the Scottish Ministers
or a member of the Scottish Executive in a court or tribunal on the
ground that an act of the Scottish Ministers or a member of the
Scottish Executive is incompatible with the Convention rights.
(3B) Proceedings to which this subsection applies must be brought
before end of –
(a) the period of one year beginning with the date on which the act
complained of took place, or
(b) such longer period as the court or tribunal considers equitable
having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation
to the procedure in question.
…
(3E) The reference in subsection (3A) to proceedings brought on or
after 2 November 2009 includes proceedings relating to an act done
before that date.”
9. As Lord Rodger observed in para 104 of his judgment in Cadder, the effect
of these provisions was not mentioned by any of the counsel who appeared to
argue that case in the Supreme Court. Nevertheless he went on to express his
opinion on it. He referred in the following paragraph to the fact that the
amendment to section 100 was made in response to the decision of the House of
Lords in Somerville v Scottish Ministers [2007] UKHL 44, 2008 SC (HL) 45,
[2007] 1 WLR 2734, in which it was held that the time limit in section 7(5) of the
Human Rights Act 1998 did not apply to proceedings in relation to Convention
rights brought by reference to the Scotland Act 1998. Having set out the terms of
the section in its amended form, he said that the proceedings in Cadder’s case were
proceedings to which that section applied. So, by reason of section 100(3B), to be
competent any such proceedings would need to have been commenced before the
end of a year beginning with the date on which the Crown led the evidence, or
Page 6
within such longer period as the court considered equitable having regard to all the
circumstances: paras 105-106. I endorsed what he said in those paragraphs in para
60 of my own judgment, when I included appeals that had been brought timeously
among the list of cases that would have to be dealt with in the light of Cadder on
the basis that a person who was detained must have had access to a lawyer before
being questioned by the police.
10. The Crown’s attempt to rely on Lord Rodger’s analysis in support of its
argument that Jude’s appeal was out of time because the act that was relied on took
place more than one year before the lodging of his note of appeal was rejected by
the Appeal Court. The Lord Justice Clerk said that he could not follow why Lord
Rodger should have taken the view that section 100(3B) applied to these
proceedings. In his opinion it applied only to claims made in civil proceedings and
then only when they were brought by virtue of the Scotland Act. That was not so
in Jude’s case, as his appeal had been brought under the 1995 Act: 2011 SLT 722,
paras 37-38.
11. Lord Rodger’s observations in paras 105-106 of Cadder were of course
obiter. They must nevertheless be treated with respect. He was, after all, a master
of the art of statutory construction. As he declared in one of his unpublished
lectures, for him the subject of attention in these matters always was the text of the
statute. His hope was that, by immersing himself in the text and the scheme of the
legislation, he would be able to see what the experts who had devoted months and
months to preparing and adjusting the text saw and, more importantly, what they
meant and how it should be applied. His dissenting judgment in Martin v Most
[2010] UKSC 10, 2010 SC (UKSC) 40 provides ample evidence of his concern for
accuracy and for attention to the detail of the language used by the draftsmen and
women when carrying out this exercise. He brought to the question as to the
meaning and effect of section 100(3B) his deep familiarity with the provisions of
the Human Rights Act 1998 which he had developed since he first engaged with
the subject in Aston Cantlow and Wilmcote with Billesley Parochial Church
Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 157-163, and his
participation in the carefully argued decision of the House of Lords in Somerville.
As Lord Hamilton points out (see para 40, below), he referred to the Somerville
case in para 105 of his judgment in Cadder when he was describing the context in
which the amendments to section 100 were made.
12. The challenge to the accuracy of his conclusion that section 100(3B) applies
to proceedings brought by way of an appeal under the 1995 Act raises two
questions. The first is whether, as the Lord Justice Clerk indicated in para 38 of his
opinion, that section is rendered inapplicable simply because criminal appeals are
brought under the 1995 Act and not under the Scotland Act. The second is whether
the wording of the amended section 100 of the Scotland Act itself shows that it has
no application to any criminal proceedings, even at the stage of an appeal.
Page 7
13. I do not think that it is difficult to see why it did not occur to Lord Rodger
that the fact criminal appeals are brought under the 1995 Act of itself meant that
these appeals lay outside the scope of section 100(3B) of the Scotland Act. He
would have concentrated on the wording of the Scotland Act, as I would too.
Section 100(3B) refers to proceedings brought “by virtue of this Act” against the
Scottish Ministers or a member of the Scottish Executive. As I said in Somerville,
2008 SC (HL) 45, para 10, anybody who wishes to bring proceedings against a
member of the Scottish Executive on the ground that an act or a failure to act is
incompatible with the Convention rights, or to rely on the Convention rights in any
proceedings, needs to know whether he must do this under sections 6 to 8 of the
Human Rights Act or whether he must do so, or can do so only, on the ground that
the act or the failure to act is contrary to the provisions of the Scotland Act. This is
so whether the proceedings in question are civil or criminal, as issues about
Convention rights may arise irrespective of the nature of the jurisdiction that the
court or tribunal is being called upon to exercise. A criminal appeal in which it is
said that the leading and relying on evidence by the Lord Advocate was contrary to
the appellant’s Convention rights, and that in terms of section 57(2) of the
Scotland Act he had no power to lead that evidence, falls plainly into the category
of a proceeding that is “by virtue of” the Scotland Act. It is the Scotland Act which
provides the basis for the appeal. The fact that the procedure under which the
complaint is made is provided by the 1995 Act is neither here nor there so far as
this point is concerned.
14. So I think that the key to the soundness or otherwise of Lord Rodger’s
reasoning lies in the answer that is to be given to the second question. Section
100(3A) of the Scotland Act refers to “any proceedings brought” on or after 2
November 2009 by virtue of that Act. In para 106 of his judgment Lord Rodger
said that the proceedings in Cadder were “proceedings brought” on the ground that
it was incompatible with articles 6(1) and (3)(c) for the Lord Advocate to lead
evidence of answers elicited by the police questioning. In my opinion it would not
be a misuse of language to use the word “brought” in relation to proceedings
which take the form of an appeal under section 106 of the 1995 Act. After all,
section 106(3) of that Act states that by an appeal under subsection (1) of that
section a person “may bring” under review of the High Court any alleged
miscarriage of justice in the proceedings in which he was convicted. The word
“bring” is not used in section 175 which provides for appeals in summary
proceedings, but the idea that the appellant is “bringing” appeals under that
procedure is not unreasonable. The wording of section 106(3) also suggests that it
would not be a misuse of language to say that the appeal was a separate
“proceeding” from the proceedings in which the appellant was convicted.
15. But that is not an end to the problems that have to be solved in order to
understand what is meant by the word “proceedings” in section 100(3A). One must
go back to the opening subsection, which Lord Rodger did not mention in para 106
Page 8
of his judgment in Cadder. It makes the same distinction as that which is to be
found in section 7(1) of the Human Rights Act 1998 between (a) bringing
proceedings in a court or tribunal on the ground that an act is incompatible with
the Convention rights and (b) relying on any of the Convention rights “in any such
proceedings”. Section 100(1)(a) of the Scotland Act does not reproduce exactly the
wording of section 7(1)(a) of the Human Rights Act, as it does not refer to “the
appropriate court or tribunal” which section 7(2) explains as meaning such court
or tribunal as may be determined in accordance with rules. The words “in any such
proceedings” do not reproduce exactly the wording of section 7(1)(b) of the
Human Rights Act either, as the equivalent phrase in that Act is “in any legal
proceedings”. But I think that they have the same effect. I read the word “such” in
subsection (1)(b) as referring back to the words “in a court or tribunal” in
subsection (1)(a). The distinction between subsections (1)(a) and (1)(b) of section
7 of the Human Rights Act is maintained by section 7(5) of that Act, which
provides expressly that “proceedings under subsection (1)(a)” must be brought
before the end of the period to which it refers. It does not impose any time bar on
proceedings of the kind referred to in section 7(1)(b). The question then comes to
be whether the reference in section 100(3A) of the Scotland Act to “ any
proceedings brought” must be taken to refer to proceedings of the former kind
only, and not to proceedings of the kind referred to in section 100(1)(b).
16. It seems to me, although it does not of course say so expressly, that the
wording of section 100(3A) shows that it has that effect and that the time bar in
section 100(3B) does not apply to proceedings of the kind referred to in section
100(1)(b). The point is that proceedings of the kind referred to in subsection (1)(b)
are proceedings that have been brought by someone other than the person who
maintains that the act in question is incompatible with the Convention rights. In
the case of the proceedings referred to in subsection (1)(a), the person to whom the
time bar is applied is the person who has brought those proceedings before the
court or tribunal in order to obtain a remedy. It is the civil courts that have
jurisdiction in cases of that kind, as the rules to which I referred in R v Kansal (No
2) [2002] 2 AC 69, para 63 make clear in the case of the Human Rights Act. The
absence of a time bar on the bringing of proceedings of the kind referred to in
section 100(1)(a) of the Scotland Act was the problem that was addressed in
Somerville, where it was held that the limitations which section 7(5) of the Human
Rights Act imposed on remedies sought under that Act did not apply where the
case that was brought was that the act or failure to act was outside competence
under the Scotland Act: 2008 SC (HL) 45, para 38. The question then is, into
which category do appeals that are brought under the 1995 Act fall for the
purposes of the Scotland Act? By whom are these proceedings “brought”?
17. The Lord Justice Clerk said an appeal is part of the prosecution process
brought against the appellant by a member of the Scottish Executive: para 38.
There is no doubt that this is a correct description of the proceedings up to and
Page 9
including the trial in which the appellant was convicted. The Advocate Depute, Mr
Brodie QC, conceded that this was so, and I think that he was right to make this
concession. But that is not an end of the matter. The Lord Advocate is the master
of the instance. The proceedings are brought in his name. He remains in control of
them even after they have been brought into court, and this is so even after the
verdict has been returned: Hume, Commentaries on the Law of Scotland
Respecting Crimes, (1844), vol II at p 134; Montgomery v HM Advocate 2001 SC
(HL) 1, pp18-19. The focus of attention changes when there is an appeal, but the
proceedings remain throughout under the ultimate control of the Lord Advocate.
The purpose of those proceedings is to secure the conviction and punishment of
those who are guilty of committing acts of the kind that the law regards as
criminal. That is their only purpose, and it remains their purpose from the start to
the very end. The conclusion that an appeal against conviction or sentence, like
any other proceeding in any of the criminal courts in Scotland, is still part of the
prosecution process that has been brought in the public interest by the Lord
Advocate seems to me to be inescapable.
18. It is only fair to Lord Rodger to point out that he mentioned section 100(3B)
because he was concerned, as I was too, to try to minimise the effect of the
decision in Cadder: see para 60, where to assist this process I invoked the principle
of legal certainty. But I am persuaded that the advice which he was offering in
paras 105-106 of his judgment was mistaken. I agree with the Appeal Court that
the time bar in section 100(3B) of the Scotland Act has no bearing on Jude’s
appeal. I am fortified in this view by the fact the 1995 Act contains in sections 109
and 110 its own system of time limits for the bringing of solemn appeals, as it does
in section 176 for an application by stated case. It would be very odd to find, in a
case where the High Court had already granted an extension under section 111(2)
of the period referred to in section 110(1)(a) of the 1995 Act or under section
181(1) of that Act in an appeal by stated case, that it was open to the Crown to
invoke another time limit under another section in a different Act.
19. It is not easy to identify the precise scope or ambit of the mischief which
the amendment that section 100(3B) introduced into the Scotland Act was intended
to remedy: see Bennion on Statutory Interpretation, 5th ed (2008), p 929, where the
importance of achieving precision on this point is emphasised. The fact that the
amendment was enacted in response to the decision in Somerville does not exclude
the possibility that the time bar was intended to have a wider application than the
facts of that case, by themselves, might suggest. But the concluding words of
section 100(3B) show that the draftsman was aware that stricter time limits might
be found in legislation relating to the procedure in question and that it was not the
intention that it should override those other time limits or decisions made under a
dispensing power to extend them. So I think that one can be reasonably confident
that the view which I have arrived at by studying the language of these provisions
is not contrary to what Parliament had in mind when it introduced this amendment.
Page 10
Birnie’s unsolicited statement
20. According to the agreed statement of facts and issues, two issues arise in
Birnie’s appeal. The first is whether he was offered rights of access to a solicitor
prior to and during the taking of his unsolicited statement after his police
interview. The second is whether, if he was offered them, he expressly waived
those rights. But an examination of the facts shows that this formulation of the
issues does not accurately focus the real point which is at issue on this branch of
the case. This is because Birnie was offered access to a solicitor before he made
his unsolicited statement and he did decline the offer expressly. It is best focused
by the additional ground of appeal that was advanced in his case in the High Court
of Justiciary: see para 2, above. The question that it poses is whether reliance by
the Crown upon the admissions that he made in his unsolicited statement deprived
him of the fair trial to which he was entitled under article 6(1) of the Convention.
Reference was also made in that ground of appeal to his right to a fair trial at
common law. That, of course, does not raise an issue which can be considered by
this court, as it is not a devolution issue. But there is, in practice, no difference
between these two bases for invoking the right to a fair trial.
21. Birnie went to trial in the Sheriff Court at Aberdeen on 7 December 2009
charged with abduction and assault with intent to rape, a breach of the peace and a
contravention of section 127(1)(a) of the Communications Act 2003 by sending
sexually explicit messages to a female complainer. He pled guilty to the statutory
offence during the trial, and his plea of not guilty to the charge of breach of the
peace was accepted at that stage. The Crown led evidence at his trial of answers he
gave to the police while he was being questioned as a detainee under section 14 of
the 1995 Act without access to a solicitor. It also led evidence of an unsolicited
statement which he made to the police following that interview. The jury found
him guilty of the first charge under deletion of various averments including that of
intent to rape.
22. The facts which provide the background to the argument in Birnie’s case
are as follows. He was interviewed under caution in a police station on Friday 14
August 2009 between 1034 and 1220 hrs with a break between 1118 and 1206 hrs.
At the time of his interview he was 18 years of age. He had been on probation
since 2008 in respect of a charge of breach of the peace with a sexual aggravation,
and he was a registered sex offender. He had been convicted on two occasions of a
breach of the notification requirements of sections 83 and 94 of the Sexual
Offences (Scotland) Act 2003. He had also previously been interviewed by the
police as a suspect. As already mentioned in para 1, above, he was not told that he
had a right of access to legal advice prior to or during his police interview as it was
not the practice at that time for this to be offered to persons detained under section
14 of the 1995 Act.
Page 11
23. Birnie made no admissions during the first stage of his interview apart from
being at the locus with the female complainer [AR] referred to in the abduction
charge and kissing her. He said that this was consensual. He was asked during his
interview what expression he would use to describe touching his girl friend’s
private parts, to which he replied with a question: “fit like poking her?” When
asked to explain what he meant by this, he said that it meant putting his fingers in
her vagina. After they had completed their questioning about the abduction the
interviewing officers charged Birnie with abducting the complainer [AR], with
indecent assault and with two charges of breach of the peace, and they arrested
him. He was then cautioned and interviewed in relation to another female
complainer, to whom he admitted sending a series of text and email messages.
After further questioning he was charged with sending indecent messages to that
complainer.
24. Following the interview Birnie was, according to an entry in a police
notebook, on the verge of tears. At 1223 hrs he asked what was happening to him.
He was told that he was to be kept in custody over the weekend to appear in
Aberdeen Sheriff Court on Monday 17 August 2009. On being advised of this he
burst into tears and said spontaneously “I poked her”. He was asked by one of the
interviewing officers whether he was referring to the complainer [AR], to which he
replied “Yes”. He was told to say nothing further but that other officers would
attend later to speak to him if he wished to make any further comments. At 1235
hrs he was asked if he wished a solicitor informed of his arrest and was told that a
duty solicitor could be contacted on his behalf. He gave the name of a solicitor. It
was not until about two hours later, at 1428 hrs, that a message was left with the
solicitor’s secretary to advise him of the arrest. Birnie also asked that his mother
be told of his arrest, but this was not possible as she was apparently not available
to answer the telephone.
25. Birnie then told the police that he wished to make a further statement,
which he did at about 1345 hrs on 14 August 2009 to two police officers who had
not had any prior involvement in the inquiry. Before he made his statement, which
it is agreed was unsolicited, he was asked whether he wished to consult a solicitor
before making it. He replied that he did not. He was asked whether he wished a
solicitor to be present while he was making it. He again said that he did not. He
was then cautioned and asked whether he understood the caution, to which he
replied “Yeah”. He then said:
“I want to admit poking [AR]. She asked me to do it and we did give
each other love bites.”
Page 12
He was asked to say what he meant by “poking”, to which he replied that meant
“putting your fingers in her vagina”. He then said:
“I never locked her in. I never locked her in her house. I asked her
several times if she wanted to leave but she says no. I didn’t threaten
her in any way.”
26. It is plain from this narrative that Birnie was offered rights of access to a
solicitor before he made his statement and he was also asked whether he wished to
have a solicitor present while he was making it. He expressly declined both of
these offers. The question is whether, on these facts, his statement was admissible.
The Crown submits that it was. This is because the statement was severable from
the prior police interview on two grounds: first, it was preceded by a valid waiver
of the right of access to a solicitor and, second, because it was voluntary and not
elicited by police questioning.
27. The Appeal Court did not address its reasoning to these points, although it
had been addressed on them in the course of the hearing of the appeal. The Lord
Justice Clerk said in para 32 of his opinion that he accepted that the rights of a
detainee or of an accused person under article 6 were capable of being waived, but
that the argument for the Crown failed in the case of each of the three respondents.
This was because the law at the time did not allow the accused to have access to a
lawyer at the time of the pre-trial procedure and because the consent to be
interviewed in each case was not informed by legal advice. He dealt more fully
with the latter ground for rejecting the Crown’s argument 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 not reason to think that
he had any such right and had not had access to legal advice on the
point…”
28. The agreed facts show that Birnie was told that he had this right before he
made his unsolicited statement following his police interview. As for the objection
that he did not have access to legal advice on the point before he declined the offer
of access to a solicitor, I would hold that the answer to it is that there is no absolute
rule that the accused must have been given legal advice on question whether or not
he should exercise his right of access to a lawyer before he can be held to have
waived it: see my judgment in McGowan (Procurator Fiscal, Edinburgh) v B
[2011] UKSC 54.
Page 13
29. Lord Kerr says that it is an indispensible prerequisite that there must be
some means of ascertaining the reason why the accused did not avail himself of
this right: para 53, below. But it was not suggested at any time in the course of the
argument that an absolute rule to that effect is to be found in the jurisprudence of
the Strasbourg court nor do I find this in Lord Kerr’s analysis of the authorities in
McGowan. This point is of crucial importance to the proper exercise of the
jurisdiction that has been given to this court by the Scotland Act. The only
question for us is whether the absence of such an inquiry amounted in itself to a
breach of a Convention right. That is the limit of our jurisdiction. A rule of the
kind that Lord Kerr has suggested might perhaps be recognised at common law.
But it is not for us to say how the law and practice respecting crimes should be
developed by the common law in Scotland. That must be left to the High Court of
Justiciary, whose decisions on all matters relating to the domestic criminal law of
Scotland are final. The fact that the accused did not receive legal advice on the
point and was not asked why he did not want to speak to a lawyer need not be left
out of account altogether for the purposes of article 6. These are circumstances
which can be taken into account in the assessment as to whether he understood the
right that was being waived. But they are no more than that. I do not think that the
Strasbourg jurisprudence requires us to hold that it would necessarily be
incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord
Advocate to lead and rely on evidence of answers given by a suspect during a
police interview just because it was not ascertained why he did not want to speak
to a lawyer. A descent to that level of detail in the laying down of incontrovertible
rules 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 Supreme Court
should, I believe, be no less careful in the way that it deals with Scottish criminal
law and procedure.
30. There remains the question whether the statement is properly to be regarded
as severable from the police interview so that it can be held to be voluntary and not
elicited by the previous police questioning. It is not in doubt that an unsolicited
admission which is truly spontaneous and voluntary is admissible. In Cadder Lord
Rodger observed that it is quite common for those who have been arrested to
decide to make admissions to the police and not to exercise their right to obtain
legal advice before doing so: 2010 SLT 1125, para 96. A person can confess if he
is willing to do so, and his confession will be admissible if it is truly voluntary.
The common law test as to what may be regarded as voluntary was described in
Manuel v HM Advocate 1958 JC 41, 48 by Lord Justice General Clyde. He said
that, to be voluntary, the statement must have been freely given and not given in
response to pressure or inducement and not elicited by questioning other than what
is directed simply to elucidating what has been said. The crucial question then is
Page 14
whether this statement freely given? Or was it the result of some kind of pressure
or inducement by the police?
31. We were not referred to any jurisprudence of the Strasbourg court on this
precise point. But in Oregon v Elstad 470 US 298 (1985), pp 317-318 Justice
O’Connor, giving the opinion of the US Supreme Court, observed that some courts
had applied that court’s precedents, including Miranda v State of Arizona 384 US
436 (1966), relating to confessions obtained under coercive circumstances to
situations involving wholly voluntary admissions, requiring a passage of time or
break in events before a second, fully warned statement can be deemed voluntary.
She went on to add these words:
“Far from establishing a rigid rule, we direct courts to avoid one;
there is no warrant for presuming coercive effect where the suspect’s
initial inculpatory statement, though technically in violation of
Miranda, was voluntary. The relevant inquiry is whether, in fact, the
second statement was also voluntarily made.”
In Missouri v Seibert (2004) 542 US 600, where the suspect made an initial
confession without having been given a Miranda warning, a majority of the court
held that his second statement after a Miranda warning was inadmissible. They
rejected the minority’s criticism that this was inconsistent with Elstad, on the
ground that the failure to give the warning in Elstad was a good-faith mistake
which was open to correction by careful warnings before systemic questioning in
that particular case took place: p 615. In R v Cherie McGovern (1990) 92 Cr App
R 228 the Court of Appeal held that a second interview, where a solicitor was
present, was tainted by the fact that at her first interview which took place the
previous day the appellant had been denied access to a solicitor. There were
special features in that case. The appellant, who was aged 19, pregnant and of
limited intelligence, was said to have been particularly vulnerable. Farquharson LJ
said at p 234 that if the solicitor who was present at the second interview had
known that the appellant had been wrongfully denied access to a solicitor at the
first interview he would in all probability not have allowed the second interview to
take place.
32. Such authorities as there are on this issue suggest that each case must be
examined carefully on its own facts. There are signs in this case, as in R v Cherie
McGovern, that Birnie was particularly vulnerable when he made what I have
referred to as his statement. It was unsolicited. He was no longer being
interviewed. But the interval between his making it and the end of the police
interview was very short. He had just been told that he was to be detained over the
weekend, and he had been crying. It is at least questionable whether he would have
made this statement if he had said that he wished to consult a solicitor and he had
Page 15
then received the legal advice to which he was entitled before making it. This is
not a question that needs to be answered in every case. But in the circumstances of
this case it is not one that can be left out of account in considering whether there
was a breach of the right to a fair trial.
33. I think that it is plain that there is room for argument as to whether the
statement that Birnie made was truly voluntary and in any event whether, taking all
the circumstances into account, it was fair to admit this evidence. Lord Kerr says
that on the available evidence the only possible conclusion is that that it has not
been established that Birnie’s decision not to consult a solicitor was an effective
waiver of his right to legal consultation: see para 57, below. But here again the
limits of our jurisdiction must be respected. It is not our function to act as a second
court of appeal on matters that depend on the application of the domestic law. The
question whether there has been a breach of the fundamental Convention right to a
fair trial is within our jurisdiction. But, as I would hold that it was not necessarily
incompatible with articles 6(1) and 6(3)(c) of the Convention for the Lord
Advocate to lead and rely on this evidence, I consider that the question of fairness
for the purposes of article 6(1) must be examined in the light of all the facts and
circumstances. This is pre-eminently a matter for determination in the first instance
by the High Court of Justicary. As the Appeal Court has not yet addressed itself to
this issue, I would remit it to that court for determination as part of the continued
hearing of Birnie’s appeal.
Conclusion
34. I would dismiss the Crown’s appeal on the question whether section
100(3B) of the Scotland Act 1998 applies in this case. I would dismiss its appeals
on the issue as to waiver in regard to the police interviews in all three cases. I
would allow its appeal on the question whether it was incompatible with Birnie’s
right to a fair trial under article 6 of the Convention for the Crown to lead and rely
on the evidence of the statement which he made following his police interview and
remit that matter for determination by the High Court of Justiciary.
LORD BROWN
35. I am in full agreement with the judgments of Lord Hope and Lord Hamilton
on these appeals and would dispose of them as Lord Hope proposes.
Page 16
LORD DYSON
36. I am in full agreement with the judgments of Lord Hope and Lord
Hamilton on these appeals and would dispose of them as Lord Hope proposes.
LORD HAMILTON
37. I agree with Lord Hope as to the disposal of all three of these appeals and
adopt his narrative of the pertinent circumstances. I also adopt his reasoning in
relation to Birnie’s unsolicited statement. I add a few words of my own on the
issue of interpretation of section 100(3B).
38. The question is whether an appeal against a conviction, obtained on
indictment or on complaint, is “proceedings brought … by virtue of [the Scotland
Act] against [the Lord Advocate]” within the meaning of subsection (3A) of the
Scotland Act (as amended by the Convention Rights Proceedings (Amendment)
(Scotland) Act 2009).
39. The scope of subsection (3A) must ultimately be determined by the
statutory language used. But it is necessary to have regard to that language in the
context of the legislation in which it appears and, in my view, in the context also of
such other legitimately available material as may assist in the exercise of
interpretation. This may involve identifying the mischief at which the enactment
was directed. In Bennion on Statutory Interpretation, 5th ed (2008), p 938 it is
stated:
“These presumptions [that Parliament intended to suppress the
mischief and that it did not intend to apply coercive measures going
wider than was necessary to remedy the mischief in question] as to
Parliament’s intention may help in construing an enactment whose
wording is doubtful. The importance of the mischief goes further
than this, however. We cannot be sure whether there is real doubt or
not unless we have the mischief in mind. This is one function of the
informed interpretation rule. In the consideration of opposing
constructions of an enactment in relation to a particular factual
situation, we may find that bringing the mischief into account helps
to decide whether the enactment is intended to be given a wider or
narrower construction.”
Page 17
40. The first thing to notice is that the amendment made by the 2009 Act is an
amendment to section 100 itself – by adding two subsections to it. That suggests
that the intendment of the legislature was to make an improvement, as it saw it, to
the effect of section 100 as originally enacted. The nature of that intended
improvement is not difficult to find. As Lord Rodger himself said in Cadder v HM
Advocate 2011 SC (UKSC) 13, at para 105:
“In Somerville v Scottish Ministers [2008 SC (HL) 45] the House of
Lords held that the time limit in section 7(5) of the Human Rights
Act 1998 did not apply to proceedings in relation to Convention
rights brought by reference to the Scotland Act 1998. It followed
that, subject to any common law limitations or any specific statutory
time limit, such proceedings could be brought at any time. The
Scottish Parliament eventually responded to that decision by passing
the Convention Rights Proceedings (Amendment) (Scotland) Act
2009, which amended section 100 of the Scotland Act so as to
introduce a one-year time-limit like the one in section 7(5) of the
Human Rights Act.”
41. Somerville was a civil case in which the House of Lords relied significantly
upon section 100 of the Scotland Act (as originally enacted) as well as on the other
provisions of that statute. Of course, the statutory response may, intentionally or
inadvertently, have been wider than to deal with the prior statutory effect which
was thought to be undesirable. But all the indications are the other way.
42. The limitation on the bringing of proceedings provided for by
section 100(3B) is for practical purposes identical to that provided by section 7(5)
of the Human Rights Act 1998. That subsection applies, and applies only, to
proceedings brought under section 7(1)(a). Such proceedings are civil proceedings
(R v Kansal (No 2) [2002] 2 AC 69, per Lord Hope of Craighead at paras 58-63).
This is to be contrasted with section 7(1)(b) which allows for reliance on the
Convention right or rights concerned in any legal proceedings – a term defined
comprehensively by section 7(6). Such reliance can accordingly be had in criminal
as well as in civil proceedings. It is difficult to suppose that the Scottish Parliament
would have, in effect, adopted the exact language used for civil proceedings in the
Human Rights Act if it had intended to provide for criminal as well as for civil
proceedings.
43. Further, it is difficult to conceive why the Scottish Parliament should think
it appropriate to provide for criminal appeals a limitation period such as that made
by section 100(3A) and (3B). The Criminal Procedure (Scotland) Act 1995 makes
its own provision for the timeous taking of appellate steps. Section 106 allows a
person convicted on indictment, with leave granted in accordance with
Page 18
section 107, to appeal in accordance with that Part of the Act to the High Court
against various things, including conviction and sentence. Section 109(1)
prescribes that, where a person desires to appeal against any of the things referred
to in section 106(1), “he shall within two weeks of the final determination of the
proceedings, lodge with the Clerk of Justiciary written intimation of intention to
appeal …”. Section 110(1)(a) provides that, in the case of an appeal against
conviction, the convicted person may, subject to section 111(2), “within eight
weeks of lodging intimation of intention to appeal … lodge a written note of
appeal …”. A shorter (four weeks) period is allowed for appeals other than
appeals against conviction (section 110(1)(b)). Section 111(2) provides:
“Any period mentioned in section 109(1) or 110(1)(a) of this Act
may be extended at any time by the High Court in respect of any
convicted person …”.
44. Thus, as regards proceedings on indictment, the 1995 Act provides its own
(much shorter) temporal restrictions on bringing appeals – with a similar power in
the court to extend the period on equitable grounds.
45. As regards summary proceedings, section 175 allows a convicted person to
appeal with leave to the High Court. The more usual mode of appeal is by stated
case (section 176), for which again a short timetable is prescribed. Section 181(1)
empowers the High Court to direct that such further time as it may think proper be
afforded to the applicant to comply with the requirements as to time. The statute
recognises other common law modes of appeal (by, for example, bill of
suspension). At common law there was no time limit for the bringing of a
suspension but acquiescence in the judgment complained of might be inferred
from undue delay (Renton and Brown – Criminal Procedure, para 33-09). A
statutory time limit (three weeks) for bringing a bill of suspension was introduced
by section 6(1) of the Criminal Procedure (Legal Assistance, Detention and
Appeals) (Scotland) Act 2010. It is difficult to suppose that, in inserting
section 100(3)(A) and (3B) into the Scotland Act in 2007, the Scottish Parliament
had in mind common law remedies in summary matters.
46. Accordingly, there are persuasive reasons, in my view, for concluding that
subsections (3A) and (3B) of section 100 (as amended) were designed to apply
only to civil proceedings. Although not spelt out in the legislation, that restriction
is consistent with the statutory language used.
47. Against that background the expression “any proceedings brought … by
virtue of this Act against [the Lord Advocate]” is to be construed. It is conceded,
inevitably, that criminal proceedings at first instance are not within the ambit of
Page 19
section 100(3A). While Part VII of the 1995 Act (headed “Solemn Proceedings”)
is dealt with distinctly from Part VIII (headed “Appeals from Solemn
Proceedings”), it involves, in my view, some artificiality of language to construe
“any proceedings brought” as apt to include an appeal taken against conviction or
sentence. In effect, there are single proceedings initiated by service of the
indictment or complaint, the appeal by a convicted person being a step taken
within these single proceedings. I am not persuaded that the terms of
section 106(3) (“By an appeal under subsection (1) above a person may bring
under review of the High Court any alleged miscarriage of justice”) assist in
determining whether an appeal is “proceedings” (distinct from the prosecution)
“brought” by the convicted person. More importantly, in my view, the expression
“any proceedings brought” in subsection (3A) appears to pick up the language “to
bring any proceedings” in subsection (1)(a), which in turn reflects the language of
section 7(1)(a) of the Human Rights Act – a provision concerned with civil
proceedings (supra). In any event, if there is ambiguity about the interpretation of
subsection (3A), the considerations referred to earlier would, in my view,
conclusively point to a criminal appeal not being within the scope of this
provision.
48. There remains for consideration “by virtue of this Act”. Some elaboration
of that phrase is provided by section 126(11) which tells us that “by virtue of”
includes “by” and “under”. In Somerville an issue was whether the obiter
observations by Lord Hope and by Lord Rodger in R v HM Advocate 2003 SC
(PC) 21 as to the effect of the Scotland Act (and in particular section 100(1) of it)
were well founded. In R Lord Rodger had said at para 123:
“Section 100 has a counterpart in section 7 of the Human Rights Act,
subsection (1) of which is expressed slightly more fully:
‘(1) A person who claims that a public authority has acted
(or proposes to act) in a way which is made unlawful by
section 6(1) may –
(a) bring proceedings against the authority under
this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned
in any legal proceedings, but only if he is (or
would be) a victim of the unlawful act.’
Especially in the light of that provision, I would infer from
section 100(1) of the Scotland Act that the Act itself enables a
person, who claims that an act or proposed act of a member of the
Scottish Executive is incompatible with his Convention rights, to
bring proceedings in a court or tribunal or to rely on his Convention
Page 20
rights in any proceedings in a court or tribunal. Convention rights
and the remedies for vindicating them belong in the sphere of public
rather than private law. … What particular form the remedy or
reliance will take depends on the court or tribunal, and on the
jurisdiction, in which the matter arises. In an appropriate court the
person affected can seek damages under the Scotland Act in respect
of an incompatible act. …”.
49. The majority in Somerville in effect approved that approach – namely, that
section 100 was, by inference, an enabling provision which, among other things,
allowed a victim of an infringement of section 57(2) to rely on the Convention
right or rights concerned in any legal proceedings, including criminal proceedings.
Thus, while the procedural vehicle by which a person convicted in solemn
proceedings brings his conviction or sentence under review is by an appeal under
section 106 of the 1995 Act, it is the Scotland Act which enables him in that
appeal to rely upon the alleged infringement of that right or those rights. Both
statutes have thus a part to play. While I think it is a nice question, I have come
with hesitation to the view that it can meaningfully be said that an appeal which
relies upon an alleged infringement of a Convention right is one brought “by virtue
of” the Scotland Act. I would accordingly not support the High Court’s reasoning
in this respect.
LORD KERR
50. As Lord Hope has pointed out (in para 5 of his judgment), the advocate
depute has confined her challenge to the outcome of the appeals in Jude, Hodgson
and Birnie to the claim that Birnie had waived his right to a lawyer when he made
an unsolicited statement following his police interview, having declined the
opportunity to have access to a lawyer prior to and while making it. It is not now
argued that Jude or Hodgson waived their right to a lawyer. It is, of course,
suggested that the Appeal Court was wrong in each of the cases in concluding that
an effective waiver of their rights under article 6 of ECHR could only be made
after they had received legal advice.
51. A further discrete ground was advanced on behalf of the Lord Advocate in
the case of Jude to the effect that section 100(3B) of the Scotland Act 1998, as
amended by section 1 of the Convention Rights Proceedings (Amendment)
(Scotland) Act 2009, precluded a challenge to the Lord Advocate’s leading
evidence of the statement which Jude made because that challenge was made too
late. I agree with all that Lord Hope and Lord Hamilton have had to say on that
subject and do not propose to expatiate further on it.
Page 21
52. As I stated in my judgment in the reference (McGowan, Procurator Fiscal v
B) I agree with Lord Hope that there is no absolute rule to be derived from the
case-law of the European Court of Human Rights (ECtHR) that an effective waiver
of the right to legal assistance can only take place after the person purporting to
waive the right has received legal advice on whether that course should be
followed. I believe that generally this will be the most effective way of ensuring
that there has been an effective waiver but Strasbourg jurisprudence has not yet
developed to the point where that is an essential prerequisite. That fact alone
would not have deterred me from concluding that this was necessary if I had felt
that the article 6 rights of the respondents could not otherwise be secured – see my
judgment in Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, 2011
SLT 1005. But I am not persuaded that the only possible means of ensuring that
there has been an effective waiver is by having the suspect who waives the right
receive legal advice on that course before he does so.
53. I have explained in my judgment in McGowan why I consider that such
safeguards as are currently available in Scottish law to protect the interests of a
suspect are not efficacious to ensure that a decision not to have legal assistance
constitutes an effective waiver. In particular, I have pointed out that it is an
indispensable prerequisite that there must be some means of ascertaining the
reason that a decision not to avail of this fundamental right has been taken.
54. Birnie’s case strikingly illustrates the elementary need for some inquiry to
be made of a suspect as to why he has decided not to have the advice of a solicitor
before interview unless the reasons for that are otherwise clearly obvious.
Although he was no stranger to the criminal law, Birnie was only eighteen years
old when he was interviewed by police. Following interview he was on the verge
of tears. When he was told that he was going to be kept in custody he broke down
and made what has been said to be an unsolicited admission. It is difficult to
imagine that this admission and Birnie’s breaking down were unrelated to his
being told that he was going to be detained over the weekend. At 12.35 pm, some
twelve minutes after he had made the admission, he was asked whether he wished
to have a solicitor contacted on his behalf. He nominated a firm of solicitors to
contact but a message was not left with that firm until some two hours later. He
also wanted his mother to be informed of his arrest but that proved impossible. The
fact that he wanted both his solicitors and his mother to be informed that he was in
detention is at least relevant to his state of mind at that time and his ability to cope
without legal assistance during any further questioning.
55. Birnie told police that he wanted to make a statement some time before 1.45
pm – notably, some 43 minutes before the solicitors whom he had been asked to be
informed of his arrest were given that information. Before he made his further
statement at 1.45 pm he was asked whether he wished to consult his solicitor
before making it and he replied that he did not, and when asked whether he wished
Page 22
to have a solicitor present while he was making it, again said that he did not. In the
circumstances the second inquiry might seem otiose but it was the product of a pro
forma procedure. Some such procedure is, of course, required to ensure that a
consistent practice is followed but, because of the routine way in which it must be
applied, it is hardly the most efficient way to examine whether a suspect has fully
understood the importance of the right which is being relinquished.
56. Lord Hope has observed that Birnie “expressly” declined both “offers” of
legal assistance. This is true but it seems to me inescapable that his decision to do
so could not in any circumstance be regarded as an effective waiver of his right to
legal counsel and I believe that it is inconceivable that any court could be satisfied
of that to the requisite standard.
57. Birnie was not asked why he did not want to speak to a lawyer,
notwithstanding that he had nominated a firm of solicitors something over an hour
before. He was not told that he could speak to a solicitor by telephone. No inquiry
was made as to whether the decision to make a statement at that time was related
to the intention of police to detain him over the weekend. That this was, at the very
least, a distinct possibility must have been obvious to the police officers who
interviewed him. Quite apart from the fact that the unsolicited statement was made
shortly after he had been interviewed without having been informed of his right to
legal assistance and leaving aside the possible impact that this might have on the
admissibility of his later statement, the circumstances in which his unsolicited
statement was made raise substantial and inevitable doubts that his waiver of the
fundamental right to legal assistance was effective. For these reasons I would hold
that it is unnecessary to remit Birnie’s case to the Appeal Court. I am of the view
that, on the available evidence, the only possible conclusion is that it has not been
established that Birnie’s decision not to consult a solicitor was an effective waiver
of his right to legal consultation.
58. For these reasons I consider that it has not been – and on the available
evidence cannot be – established that Birnie’s decision not to consult a solicitor
constituted an effective waiver of his right to legal consultation. On that account, I
would dismiss the appeal in his case. I would dismiss the appeals in Jude and
Hodgson for the reasons given by Lord Hope.
59. In para 29 of his judgment Lord Hope has fastened on my statement (at para
53 above) that it is an indispensable prerequisite that there must be some means of
ascertaining the reason that an accused did not wish to avail himself of the right to
legal assistance and has characterised this as an “absolute” or “incontrovertible”
rule. I had not intended to propound any new principle, much less an inflexible
rule.
Page 23
60. In saying that a means must exist for understanding why someone has
declined to exercise his right to legal assistance before finding that there has been
an effective waiver, I was merely reflecting what I understand to be the
unmistakable effect of current Strasbourg jurisprudence. I was not constructing
some unheralded, disquieting rule. This can be demonstrated by a few simple
propositions:
(i) For a waiver to the right to legal assistance to be effective, there
must be a knowing and intelligent decision to waive the right. I do not
understand the majority in this case to suggest otherwise;
(ii) In a case where the effectiveness of the waiver is in dispute, it is for
the prosecution to prove that it is effective. Again I do not believe that this
is controversial;
(iii) It is well recognised that reasons other than those which would
qualify as sufficient to support the conclusion that a knowing and intelligent
decision has been made will frequently motivate a suspect to decline the
right to legal assistance;
(iv) In order for the prosecution to show that such reasons do not obtain
and that a knowing and intelligent decision has been made, it is necessary to
have some insight into why the right has been declined.
61. The requirement that a means exist of obtaining that insight does not
involve the creation of some startling new rule. It merely follows the flight of the
arrow of logic to its obvious destination.
62. In these circumstances, I respectfully question whether the passage from the
paper by the President of ECtHR, Sir Nicolas Bratza, quoted by Lord Hope has
any relevance to the current debate. Sir Nicolas had made the entirely
unexceptionable statement that the Strasbourg court has been careful to refrain
from imposing specific requirements on the State. Quite so – but that does not
impinge on the conclusion that I have reached about the effect of the case-law of
the European Court of Human Rights. I have merely indicated where I believe the
jurisprudence of that court in this area leads. It was not my intention to descend to
a “level of detail in laying down an incontrovertible rule”. Indeed, I have made it
clear that an inquiry into the reasons for a purported waiver is required only when
those reasons are not obvious from the circumstances in which it was made.
