Jude and others v Her Majesty’s Advocate (Scotland)

The one-year limit in section 100(3B) of the Scotland Act 1998 applies to proceedings brought against the Scottish Ministers or a member of the Scottish Executive. It does not govern reliance on Convention rights within a criminal prosecution or appeal.

Legal advice before waiver is not an absolute requirement under article 6. Whether a suspect knowingly and effectively waived access to a lawyer depends on all the circumstances. The absence of advice and of an inquiry into the suspect’s reasons remain relevant.

A post-interview admission is admissible only if it was truly voluntary. Its voluntariness, severability from an earlier unadvised interview and compatibility with a fair trial require a fact-sensitive assessment.

Three convicted persons appealed to the High Court of Justiciary after statements made during police interviews, conducted without access to legal advice, had been used at their trials. Their appeals remained current when Cadder v HM Advocate [2010] UKSC 43 was decided.

The Appeal Court rejected preliminary Crown objections and continued the conviction appeals: [2011] HCJAC 46. The Crown appealed to the Supreme Court.

The remaining issues were whether the one-year limit in section 100(3B) of the Scotland Act 1998 barred Jude’s Convention challenge; whether Birnie effectively waived legal assistance before making an unsolicited post-interview statement; and whether reliance on that statement was compatible with his right to a fair trial.

1. Disposition. The Crown’s appeal concerning the application of section 100(3B) of the Scotland Act 1998 was dismissed. Its appeals concerning waiver during the three police interviews were also dismissed. By a majority of four to one, its appeal concerning Birnie’s later unsolicited statement was allowed and the fairness issue remitted to the High Court of Justiciary.
2. The statutory time limit. Lord Hope, with whom Lord Brown, Lord Dyson and Lord Hamilton agreed, held that the one-year limit did not apply to Jude’s criminal appeal. Section 100 distinguishes proceedings brought on the ground of Convention incompatibility from reliance on Convention rights within proceedings brought by another person. A Scottish criminal prosecution, including an appeal against conviction or sentence, remains part of proceedings brought in the public interest and controlled by the Lord Advocate. The separate appellate procedure under the Criminal Procedure (Scotland) Act 1995 does not change that character. Lord Rodger’s contrary obiter observations in Cadder v HM Advocate [2010] UKSC 43 were mistaken.
3. Waiver. The majority held that article 6 establishes no absolute rule requiring a suspect to obtain legal advice about whether to exercise the right of access to a lawyer before that right can be waived. The absence of prior advice, and any failure to ask why the suspect declined assistance, are circumstances relevant to whether the right was understood. They are not independently decisive Convention requirements.
4. Post-interview statements. A truly spontaneous and voluntary confession is admissible. Under the common-law test, a statement must be freely given, without pressure or inducement, and must not be elicited by questioning beyond clarification of what the suspect has already said. Whether a later statement is severable from an earlier unadvised interview and compatible with a fair trial depends on all the circumstances.
5. Birnie. His youth, distress, the short interval after the unadvised interview, the prospect of weekend detention and the delay in contacting his nominated solicitor created an arguable issue about voluntariness and fairness. Article 6 did not, however, make reliance on the statement necessarily incompatible with a fair trial. The High Court of Justiciary had not determined that fact-sensitive issue, so it was remitted.
6. Dissent. Lord Kerr would have dismissed the Crown’s appeal in Birnie’s case. He considered that an effective waiver had not been established because the circumstances created unavoidable doubt about whether Birnie knowingly relinquished legal assistance.

1. United Kingdom Supreme Court: Dismissed the Crown’s appeal on section 100(3B) of the Scotland Act 1998 and on waiver during the police interviews. By a majority of four to one, it allowed the appeal concerning Birnie’s unsolicited statement and remitted the fair-trial issue.
2. High Court of Justiciary, Appeal Court: In [2011] HCJAC 46, repelled the Crown’s preliminary objections and continued the respondents’ conviction appeals for determination of the remaining grounds.
3. Trial courts: Jude was convicted in the High Court of Justiciary. Hodgson’s trial details are not stated. Birnie was convicted in Aberdeen Sheriff Court.