Ambrose v Harris (Procurator Fiscal, Oban) (Scotland)

The automatic rule requiring access to a lawyer before police questioning applies where a suspect is in police custody or is otherwise deprived of freedom of action in a significant way. Strasbourg jurisprudence did not clearly extend that rule to every questioning of a suspect outside custody.

Article 6 may nevertheless be engaged before custody once the person’s situation has been substantially affected. In a non-custodial case, lack of legal advice remains relevant to the overall assessment of fairness but does not itself make the answers inadmissible. A suspect who was handcuffed and detained during a search was effectively in police custody and could not be questioned for incriminating evidence without access to legal advice.

The Supreme Court considered three references from the High Court of Justiciary concerning incriminating answers given to police officers without prior access to legal advice. The references arose after Cadder v HM Advocate [2010] UKSC 43, which applied the rule in Salduz v Turkey to questioning during detention.

Ambrose had answered questions under caution at the roadside before a breath test. M had answered preliminary questions under caution at his home. G, who had been handcuffed and detained during the execution of a search warrant, answered questions concerning drugs and firearms found in the premises.

The central issues were whether the right of access to a lawyer extended beyond questioning in police custody and, if so, when that right arose.

1. By a majority, the references in Ambrose and M were answered in the negative and the reference in G was answered in the affirmative. Lord Hope gave the leading judgment. Lord Brown, Lord Dyson and Lord Matthew Clarke agreed. Lord Kerr dissented concerning Ambrose and M but agreed concerning G.

2. Article 6 becomes engaged when the individual is “charged” in the autonomous Convention sense. The question is whether the individual’s situation has been substantially affected. This generally occurs when suspicion is being seriously investigated and the prosecution case is being compiled. It may therefore occur before arrest or custody. Ambrose and M had each been charged in that sense when the material questioning occurred.

3. The rule derived from Salduz v Turkey and applied in Cadder v HM Advocate [2010] UKSC 43 was confined to a suspect in police custody or whose freedom of action had been significantly curtailed. Strasbourg had not stated with sufficient clarity that every suspect questioned outside custody must first have access to a lawyer. Domestic courts should not expand a Convention right beyond the scope justified by Strasbourg jurisprudence where the proposed extension involved a real question of policy and judgment.

4. Accordingly, the absence of legal advice did not by itself make Ambrose’s roadside answers or M’s answers at home inadmissible. Their admissibility remained subject to the domestic test of fairness, having regard to all the circumstances. That question was left respectively to the Appeal Court and the sheriff.

5. G had been handcuffed and detained during the search. His freedom of action had been significantly curtailed and he was effectively in police custody. The circumstances were sufficiently coercive for the incriminating answers obtained without access to legal advice to be inadmissible. This did not establish an automatic right to legal advice during every police search; absent custody or equivalent coercion, admissibility depended on overall fairness.

6. Lord Kerr would have held that once a person becomes a suspect, questions capable of producing inculpatory evidence constitute interrogation. In his view the suspect must be informed of the right to legal representation and, if requested, questioned in a lawyer’s presence whether or not in custody.

1. United Kingdom Supreme Court: answered three devolution references made under paragraph 33 of Schedule 6 to the Scotland Act 1998. It held that there was no automatic Convention bar to the evidence in Ambrose and M, but that the evidence from G was incompatible with his Convention rights.

2. High Court of Justiciary, Appeal Court: referred each question at the Lord Advocate’s request. Ambrose’s case was an appeal against conviction; M’s case was an appeal against a sheriff’s admissibility ruling; and G’s case arose from a devolution minute referred before trial.

3. Oban Sheriff Court: convicted Ambrose of being in charge of a motor vehicle while over the prescribed alcohol limit. The sheriff admitted the roadside questions and answers.

4. Sheriff court: ruled that M’s answers at his home were admissible, while the Crown conceded that his later answers during detention were inadmissible.