McGowan (Procurator Fiscal, Edinburgh) v B

The Supreme Court considered whether, for Convention purposes, a suspect in police custody can validly waive the right of access to a lawyer without first receiving legal advice. The court reviewed Strasbourg jurisprudence (notably Salduz v Turkey) and related authorities and concluded that there is no rule that an accused must have received legal advice before an effective waiver can be made. The minimum requirements for an effective waiver are that the suspect has been informed of the right, understands what the right is and that it is being waived, and that the waiver is made freely and voluntarily; additional safeguards may be required where the suspect is vulnerable or the circumstances make comprehension doubtful.

The court disapproved passages in Jude v HM Advocate suggesting that an accused could not waive the right unless he had received legal advice. On the facts of this case the court remitted to the sheriff the question whether it would be fair for the Crown to lead evidence of the respondent’s police interview, leaving findings of fact (including whether the respondent’s waiver was knowing and intelligent) to the trial court.

Background and procedure: The Lord Advocate required a devolution reference under paragraph 33 of Schedule 6 to the Scotland Act 1998 arising from a summary complaint in the Sheriff Court of Lothian and Borders (Edinburgh). B was charged with housebreaking with intent to steal and possession of a controlled drug (section 5(2) Misuse of Drugs Act 1971). His solicitor lodged a Devolution Minute arguing that B’s Article 6 rights had been breached because he was interviewed after declining solicitor access without having had legal advice on that decision. The sheriff referred two amended questions to the Supreme Court: (i) a question of principle whether article 6(1) read with article 6(3)(c) necessarily requires legal advice before a suspect can validly waive solicitor access; and (ii) a factual question whether, on the specifics of B’s interview (where he was informed of the right, signed a solicitor access form and expressly declined prior to interview but did not receive legal advice), the Crown could lead evidence of his interview.

Issues: (i) the legal test for an effectual waiver of the right of access to a lawyer under article 6; (ii) whether the Strasbourg case-law requires actual receipt of legal advice before an effective waiver can occur; (iii) whether the safeguards and practice in Scotland (including section 15A Criminal Procedure (Scotland) Act 1995, the ACPOS guidance and SARF procedure) were sufficient in the particular factual circumstances to permit the Crown to rely on the interview evidence.

Court’s reasoning: The court examined Strasbourg jurisprudence in three groupings (pre-Salduz authority, Salduz itself and post-Salduz decisions). It reaffirmed the Strasbourg formulations that a waiver must be voluntary, informed/knowing and unequivocal and attended by minimum safeguards commensurate to the importance of the right. The court held that Strasbourg has not laid down a rule that legal advice is an absolute prerequisite to waiver; several Strasbourg decisions show that an informed and voluntary express waiver given after being informed of the right can be effective (for example Yoldaş, Galstyan). Equally, Strasbourg decisions indicate that additional safeguards or legal advice may be required where the suspect is vulnerable or there is reason to doubt comprehension (for example Pishchalnikov, Talat Tunç, Şaman). The majority therefore answered the first question in the negative (no automatic rule requiring prior legal advice) but concluded that whether the particular interview evidence in this case may be led depends on the facts and should be determined by the sheriff after hearing evidence; accordingly the second question was remitted. The court also disapproved parts of the Lord Justice Clerk’s reasoning in Jude which had been read as imposing a rule that waiver without legal advice is ineffective.

Practical observations: The court noted existing and proposed best practice (ACPOS Manual, Code C practice in England, Carloway Review) and suggested measures (offering telephone consultation, asking and recording reasons for refusing a solicitor in some cases) as ways to reduce the risk that a waiver is not knowing and intelligent, while emphasising that such measures are best left to policy reviews and to the trial courts to apply to individual cases.

The court held (majority) that Strasbourg jurisprudence does not establish an absolute rule that a suspect must have received legal advice before he can validly waive the right of access to a lawyer. The first question was answered in the negative. The second question (whether it would be compatible with article 6 for the Crown to lead evidence of the respondent’s interview on the particular facts) was remitted to the sheriff for determination of the facts and fairness. The court also disapproved aspects of Jude v HM Advocate suggesting an absolute rule requiring prior legal advice.

The matter arose as a devolution issue referred by the Sheriff Court of Lothian and Borders at Edinburgh under paragraph 33 of Schedule 6 to the Scotland Act 1998. The Lord Advocate invited the sheriff to refer the point to the Supreme Court after commentary in the High Court of Justiciary Appeal Court in Jude v HM Advocate [2011] HCJAC 46; the Supreme Court gave its judgment in McGowan v B [2011] UKSC 54.