Her Majesty’s Advocate v P (Scotland)

Article 6 does not impose an absolute rule excluding evidence discovered through questioning a detained suspect who lacked access to legal advice. Evidence which exists independently of the suspect’s answers and can prove its relevance without reliance on those answers may be admitted if the proceedings as a whole remain fair.

By contrast, evidence created by the answers, or whose incriminating significance necessarily depends upon linking it to them, is inadmissible unless compelling reasons justified restricting access to legal advice. The trial court must determine admissibility in the particular circumstances by protecting the accused’s fundamental right to a fair trial.

P was indicted in the High Court of Justiciary for assault and rape. While detained under section 14 of the Criminal Procedure (Scotland) Act 1995, he was interviewed without access to legal advice. He named a friend who could support his account. When questioned, that friend also disclosed an earlier telephone conversation in which P had admitted sexual intercourse with the complainer but said that it was consensual.

The Crown accepted that incriminating statements from the police interview were inadmissible but proposed to call the friend. At the Lord Advocate’s request, the trial judge referred two questions under paragraph 33 of Schedule 6 to the Scotland Act 1998. The central issue was whether articles 6(1) and 6(3)(c) required the automatic exclusion of independently existing evidence discovered through an unlawfully uncounselled interview.

1. The reference was answered in part. Lord Hope, with whom Lord Dyson, Lord Kerr and Lord Matthew Clarke agreed, answered the first question in the negative. Lord Brown agreed fully. There is no absolute rule under articles 6(1) and 6(3)(c) of the European Convention on Human Rights that every evidential fruit of questioning conducted without access to a lawyer must be excluded.

2. The right against self-incrimination primarily protects the suspect’s will to remain silent. It does not ordinarily extend to material which exists independently of that will. Strasbourg jurisprudence also treats evidential admissibility principally as a matter for national law and asks whether the proceedings as a whole were fair.

3. A distinction must be drawn between evidence created by the suspect’s answers and evidence which existed independently of them. Evidence whose incriminating value necessarily depends upon linking it to answers obtained during an uncounselled custodial interview is inadmissible unless compelling reasons justified restricting access to legal advice. That principle explains the treatment of the conducted discovery in Chalmers v HM Advocate and the scope of Cadder v HM Advocate [2010] UKSC 43.

4. Different considerations apply where the answers merely supply a clue leading to evidence which can speak for itself. Its quality and relevance do not depend upon the interview. Neither Salduz v Turkey nor later Strasbourg authority establishes that such evidence must automatically be excluded. Its admission must instead be assessed by asking whether it would deprive the accused of a fair trial.

5. Lord Brown added that this conclusion corresponded with sections 76(4) and 78(1) of the Police and Criminal Evidence Act 1984. Under those provisions, facts discovered through an excluded confession may be admitted, subject to the court’s power to exclude evidence whose admission would adversely affect the fairness of the proceedings.

6. The Court declined to answer the second question. Whether admission of the friend’s evidence concerning the telephone conversation would violate P’s article 6(1) right depended upon all the circumstances and was for the trial judge.

1. United Kingdom Supreme Court: On a reference under paragraph 33 of Schedule 6 to the Scotland Act 1998, unanimously held that article 6 creates no absolute rule excluding independently existing evidence discovered through an uncounselled custodial interview. The Court declined to determine the admissibility of the particular witness evidence.

2. High Court of Justiciary: Before P’s trial, Lord Bracadale made the reference at the Lord Advocate’s request after P challenged the proposed use of evidence discovered following his interview.