McGowan (Procurator Fiscal, Edinburgh) v B (Scotland)

A suspect in police custody may validly waive the article 6 right of access to a lawyer without first receiving legal advice about whether to waive it. An effective waiver must be voluntary, informed and unequivocal. The suspect must be told of the right, understand what it entails and waive it freely.

Whether those requirements are satisfied depends on all the circumstances. Vulnerability, age, health, intelligence, intoxication, stress and the gravity or complexity of the suspected offence may require additional safeguards. The prosecution bears the burden of establishing an effective waiver. Prior legal advice may be necessary in an individual case, but it is not an invariable Convention requirement.

B was detained on suspicion of housebreaking and later charged with that offence and possession of a controlled drug. Before a police interview, he was informed of his right to consult a solicitor. He declined consultation orally and in writing, without first obtaining legal advice, and subsequently gave incriminating answers.

B raised a devolution issue in summary proceedings before the Sheriff Court at Edinburgh. Following observations in Jude v HM Advocate [2011] HCJAC 46, the Lord Advocate required a reference under Schedule 6 to the Scotland Act 1998.

The Supreme Court was asked whether reliance on an interview must necessarily be incompatible with article 6 where a properly informed suspect expressly declined legal assistance without first consulting a lawyer, and whether reliance on B's particular interview would be compatible with his Convention rights.

1. Disposition. The first question was answered in the negative unanimously. By a majority comprising Lord Hope, Lord Brown, Lord Dyson and Lord Hamilton, the second question was remitted to the sheriff for determination after hearing the relevant evidence. Lord Kerr would have answered it in the negative.

2. Per Lord Hope, with whom Lord Dyson agreed entirely and whose disposal Lord Brown and Lord Hamilton supported, the Strasbourg jurisprudence establishes no rule that a suspect must receive legal advice before effectively waiving the right of access to a lawyer during police questioning. Where a suspect has been informed of the right and expressly declines it, the waiver will normally be effective if the suspect understands the right and the waiver is made freely and voluntarily. The minimum requirements are properly described as a voluntary, informed and unequivocal waiver attended by safeguards commensurate with the importance of the right.

3. The statements in Jude v HM Advocate [2011] HCJAC 46 suggesting that a waiver could not be informed without prior legal advice were disapproved. Cases including Yoldaş v Turkey, Galstyan v Armenia and Paskal v Ukraine showed that an express waiver could be effective without such advice.

4. The inquiry remains fact-sensitive. A court must consider whether the suspect acted freely and understood the right and the general significance of proceeding without legal assistance. Age, health, intelligence, vulnerability, intoxication, stress, the seriousness of the allegation and the likely length or complexity of the interview may require additional safeguards. Legal advice may therefore be a necessary safeguard in an individual case.

5. Lord Hope suggested as good practice that a suspect who declines assistance should be told that telephone consultation is available, asked why assistance is being declined, and have the answer recorded. These measures may expose and permit correction of misunderstandings. They were not, however, absolute requirements already established by Strasbourg jurisprudence.

6. The compatibility of using B's answers raised questions of fact and degree. As the proceedings were a reference rather than an appeal, the sheriff should decide, in light of all the evidence, whether it would be fair for the Lord Advocate to lead and rely on the interview.

7. Lord Kerr agreed that prior legal advice was not invariably required. He dissented on the second question because no inquiry had been made into B's reasons for declining assistance. In his view, the available evidence could not establish an unequivocal and informed waiver.

1. United Kingdom Supreme Court: answered the general Convention question in the negative and, by a majority, remitted the fact-specific question to the sheriff.
2. Sheriff Court of Lothian and Borders at Edinburgh: the sheriff referred the devolution issue at the Lord Advocate's requirement under paragraph 33 of Schedule 6 to the Scotland Act 1998. B's criminal trial had not yet taken place.