In these two cases the Supreme Court has considered whether the failure to take up on legal representation during police interview amounted to a waiver of the right of access to legal advice for the purposes of determining whether the trial had been fair.
Both cases involved detention of individuals which had taken place prior to the decision of this Court in Cadder v Her Majesty’s Advocate  UKSC 43 (see our post) and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials.
The following report on the two cases combined is based on the (separate) Supreme Court summaries. There were other issues relating to the constitutional basis for the referral of human rights points from the Scottish courts to the Supreme Court, limitation and the running of time under the Criminal Procedure (Scotland) Act 1995 and the Human Rights Act 1998 which for the sake of brevity are not touched on in this report which concerns itself with the fair trial questions only - for full summaries read the SC press reports on Jude and others and McGowan .
Jude and others v HM Advocate: the facts
The respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. They had not had legal representation during the course of the police interviews. One of the respondents, Birnie, had made a further, unsolicited, statement after the interview. He declined to consult a solicitor first or to have a solicitor present while making the statement. In the statement he made various admissions. The Crown’s case was that his statement was admissible because he had waived his right to legal representation.
The respondents were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. They argued, on the basis of Cadder, that the leading of evidence of the statements 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. 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) and at common law.
On the question whether the respondents had waived their right to legal assistance, the important point in these appeals 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. The outstanding matters before the Court were therefore whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview, and whether the reliance by the Crown upon the appellant’s admissions in these circumstances deprived him of his right to a fair trial under Article 6(1) of the Convention.
Judgment in Jude and others v HM Advocate
The Court accepted the Lord Advocate’s position that the appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson should be dismissed. By a majority of 4-1, the Supreme Court allowed the appeal on the question whether it was incompatible with Birnie’s right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview.
There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (below). It was not suggested in the course of argument that an absolute rule requiring reasons for the accused’s decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right.
It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. 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. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure .
There is room for argument as to whether Birnie’s statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary .
For Lord Kerr, it was an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived . On the available evidence, his view was that it had not been established that there was an effective waiver by Birnie of his right to legal assistance .
McGowan (Procurator Fiscal) v B (Respondent): the facts
The respondent, ‘B’, whose 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. Before the commencement of a police interview, he was offered legal assistance but declined the offer. His waiver of the right to legal assistance took place without his having received advice on the point from a solicitor In advance of the trial, B’s solicitor lodged a Devolution Minute stating that B’s right to a fair trial under Article 6(3)(c) would be breached if the Crown were to lead evidence of his police interview since, it was claimed, access to a solicitor should be automatic when someone has been detained in police custody.
The judgment in McGowan
Neither Strasbourg jurisprudence nor the case law of the US Supreme Court supported the proposition that the right of access to legal advice during police questioning could only be waived if the accused had received advice from a lawyer as to whether or not he should do so. Where the accused, having been informed of his rights, stated that he did not want to exercise them, his express waiver of those rights would normally be held to be effective. The minimum guarantees were that he had been told of his right, that he understood what the right was and that it was being waived and that the waiver was made freely and voluntarily.
In some cases access to a lawyer might well be a necessary prerequisite of a valid waiver in some cases. The court had to be alive to the possibility that some defendants were of low intelligent or were under the influence of alcohol or drugs and that they might not fully understand words of the caution, or the advice that they had the right to a private consultation with a solicitor before and during questioning.  Such vulnerable people might need to be given “more than standard formulae” if their right to a fair trial was not to be compromised.
Whilst emphasising that there was no intention to suggest that Article 6 required that these measures should be adopted in every case, the Court made two suggestions.
First, if, on being informed or reminded of the right of access to legal advice, the detainee declined to speak to a solicitor in person, the officer in question should point out that the right included the right to speak to a solicitor on the telephone; if the detainee continued to waive the right, the officer should ask him why, and any reasons given should be recorded on the custody or interview record.  Second, it would be advisable to inform those of limited means that a lawyer could be appointed to represent them, 
In Lord Kerr’s partially dissenting opinion, “close scrutiny” of the claim that the right to legal assistance had been waived should always be required, and the first of Lord Hope’s suggestions should be adopted in every case [115, 127].
Sign up to free human rights updates by email, Facebook, Twitter or RSS