Ambrose v Harris

The court considered whether the Strasbourg rule in Salduz v Turkey and this Court’s decision in Cadder v HM Advocate requiring access to a lawyer for persons interrogated by police applies only to persons in police custody or also to questioning that takes place before detention (for example at the roadside, in the suspect’s home, or during a search). The court held that Article 6(1) taken with Article 6(3)(c) of the European Convention on Human Rights is engaged once a person’s position in the proceedings has been substantially affected (for example once suspicion has crystallised), but that Strasbourg jurisprudence does not clearly require an absolute rule of pre-interview legal advice outside custody.

Applying that approach, the Court answered the three references as follows: in Ambrose (roadside questioning) and in M (questioning at home) it would not go further than Strasbourg and impose a rule that access to a lawyer must be provided before such pre-custodial questioning; admissibility in those cases should be resolved by the domestic courts by reference to fairness and all the circumstances. In G (statements made during a search while the accused was effectively detained and handcuffed) the Court held the circumstances were equivalent to custody and that reliance on the incriminating statements given without access to legal advice was incompatible with Convention rights.

This three‑fold reference from the High Court of Justiciary (made under Schedule 6, paragraph 33 to the Scotland Act 1998 at the Lord Advocate’s request) raised whether the right of access to a lawyer recognised in Salduz v Turkey and given effect in Cadder v HM Advocate extends beyond custodial police interrogation to earlier stages of police questioning. The references arose from different factual matrices: (i) Ambrose — roadside questioning after police approached a drunk occupant of a car and questions were put under common law caution; (ii) M — questioning at the accused’s home under common law caution before he attended the police office and was thereafter detained under section 14 of the Criminal Procedure (Scotland) Act 1995; and (iii) G — questioning and admissions made while detained and handcuffed during a warrant search under the Misuse of Drugs Act 1971.

Nature of the application: the Lord Advocate asked this Court to determine whether it would be incompatible with the accused’s Convention rights for the Crown to lead and rely on admissions made in those pre-custodial (or contemporaneous) circumstances where no access to legal advice was provided.

Issues framed:

• Whether the Salduz/Cadder principle (right of access to a lawyer "as from the first interrogation") applies only to interrogation in police custody or to any police questioning after the person becomes a suspect.
• If the rule extends outside custody, from what moment in the investigatory process does it apply.

Reasoning and conclusion: the Court analysed the Grand Chamber’s reasoning in Salduz, subsequent Strasbourg case‑law (notably Zaichenko v Russia) and comparative authority (including Miranda and R v Grant), and emphasised the need to interpret Strasbourg jurisprudence accurately and with caution. The Court concluded that Article 6 is engaged when the person’s position is substantially affected (for example once suspicion has crystallised) but that Salduz should be read in its factual context as principally concerned with interrogation in police custody. Where questioning occurs outside custody, the absence of legal advice is a relevant circumstance in assessing fairness but does not automatically render statements inadmissible; domestic courts must decide admissibility by reference to fairness and all the circumstances. However, where the facts show a significant curtailment of freedom of action (equivalent to custody) the Salduz/Cadder rule applies and reliance on statements made without access to a lawyer will be incompatible with Convention rights. Applying these principles, Ambrose and M: no categorical incompatibility (admissibility to be decided on fairness); G: evidence inadmissible because G was in effect in custody during the search.

The Court answered the questions referred as follows. In Ambrose (roadside questioning) and in M (questioning at home) it held that Strasbourg jurisprudence does not clearly establish an absolute rule that access to a lawyer must be provided before any pre-custodial questioning of a suspect; the absence of legal advice is a factor in the fairness assessment but admissibility should be determined by the domestic court in light of all the circumstances. In G (statements made during a search where the accused was handcuffed and effectively detained) the Court held that the circumstances were equivalent to custody and that reliance on incriminating answers obtained without access to legal advice would be incompatible with Article 6(1) together with Article 6(3)(c). Rationale: Article 6 is engaged once the person’s situation is substantially affected; Salduz is principally concerned with custodial interrogation and, outside custody, the requirement for legal advice depends on whether the circumstances are sufficiently coercive (a custody‑equivalent).

References were made by the High Court of Justiciary (Appeal Court / trial judges) to the Supreme Court under paragraph 33 of Schedule 6 to the Scotland Act 1998 at the Lord Advocate’s request. The Court considered the referred questions after earlier domestic hearings (sheriff trial, stated case, devolution minute and appeals) and in light of Cadder v HM Advocate [2010] UKSC 43 and Strasbourg authorities.