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

The Supreme Court considered three appeals arising from convictions where suspects had been interviewed under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 without access to a lawyer, prior to this court’s decision in Cadder v HM Advocate. The principal legal issues were (1) whether the time limit in section 100(3B) of the Scotland Act 1998 precluded a devolution challenge to the leading of interview evidence, (2) whether the appellants had waived any right of access to a lawyer, and (3) in Birnie’s case only, whether an unsolicited post‑interview admission was admissible and whether its use by the Crown deprived him of a fair trial under article 6(1) ECHR.

The court held that section 100(3B) did not impose a time bar on criminal appeals taken under the Criminal Procedure (Scotland) Act 1995 and that the normal statutory time limits and extension powers in the 1995 Act governed such appeals. On waiver, the court rejected the argument that an accused could not, as a matter of law, waive the right to legal assistance; however, whether any waiver was effective depended on the facts. In Birnie’s case the court found there was room for argument about voluntariness and fairness of the unsolicited admission: Lord Hope and a majority remitted that specific question to the High Court of Justiciary for determination, while Lord Kerr would have held the prosecution had not proved an effective waiver and would have dismissed the Crown’s appeal on that point. The result was that the Crown’s appeal was dismissed on the time‑bar point and on waiver in relation to police interviews generally, but allowed in part in relation to the admissibility/fairness question in Birnie and remitted for further determination.

Background and parties: The respondents (Jude, Hodgson and Birnie) had been detained and interviewed under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 prior to this court’s decision in Cadder v HM Advocate. As was then practice, they were not offered access to a solicitor before or during those interviews. Statements from the interviews were led by the Crown at trial and used to secure convictions. The Lord Advocate appealed from the Appeal Court’s decision that permitted devolution challenges to the leading of such evidence.

Nature of the application/relief sought: The Crown sought to overturn the Appeal Court’s ruling that allowed consideration of devolution issues based on Cadder, with particular challenges that (i) section 100(3B) of the Scotland Act 1998 imposed a one‑year time bar on such proceedings; (ii) the appellants had waived any right to legal advice; and (iii) in Birnie’s case, that any waiver meant his unsolicited admission was admissible and did not render the trial unfair.

Procedural posture: The appeals came from the High Court of Justiciary Appeal Court ([2011] HCJAC 46). The Supreme Court heard the Crown’s appeal by leave under paragraph 13 of Schedule 6 to the Scotland Act 1998.

Issues framed by the court:

• Whether the time limit in section 100(3B) of the Scotland Act 1998 applies to criminal appeals under the 1995 Act;
• whether suspects detained under section 14(1) of the 1995 Act could have waived the right to legal assistance when interviewed without having received legal advice;
• whether Birnie’s unsolicited post‑interview admission was voluntary and severable from the earlier interview and, if not, whether its use breached article 6(1) ECHR.

Reasoning and disposition: The court (Lord Hope delivering the leading opinion) concluded that section 100(3B) of the Scotland Act did not apply to criminal appeals brought under the Criminal Procedure (Scotland) Act 1995 because the 1995 Act provides its own procedural time limits and extension powers; to hold otherwise would be anomalous. On waiver, the court rejected a rigid rule that waiver of the right to legal assistance could be effective only after legal advice, but emphasised that effectiveness of any waiver is fact‑sensitive and that prosecution bears the burden of proving it. As to Birnie’s unsolicited statement, Lord Hope held there was a real question whether the admission was voluntary and whether its admission was fair in all the circumstances; he therefore remitted the fairness/admissibility issue to the High Court of Justiciary for determination. Lord Kerr (dissenting on Birnie) would have concluded on the available evidence that Birnie had not effected an effective waiver and would have dismissed the Crown’s appeal in his case. The practical outcome was to dismiss the Crown’s appeal on the time‑bar point and on waiver in relation to the pre‑trial interviews generally, but to allow in part the Crown’s appeal as to Birnie’s unsolicited statement and remit that discrete issue to the Appeal Court for determination.

Wider context: The court noted the interaction between the Scotland Act, the Human Rights Act 1998 and domestic criminal procedure, and emphasised respect for domestic criminal law processes and the fact‑sensitive nature of waiver and voluntariness under article 6 jurisprudence.

This was an appeal by the Lord Advocate. The Supreme Court allowed the appeal in part. It held that section 100(3B) of the Scotland Act 1998 does not impose a one‑year time bar on criminal appeals under the Criminal Procedure (Scotland) Act 1995 and therefore Jude’s appeal was not time‑barred; it rejected the submission that detained suspects could never waive the right to legal assistance simply because legal advice had not been available at the time; but as to Birnie’s unsolicited post‑interview admission the court found there was a real question whether the admission was voluntary and whether its admission was fair, and remitted that issue to the High Court of Justiciary for determination (Lord Kerr would have held the waiver ineffective and dismissed the Crown’s appeal in Birnie).

On appeal from the High Court of Justiciary Appeal Court ([2011] HCJAC 46). The Crown obtained leave to appeal to the Supreme Court under paragraph 13 of Schedule 6 to the Scotland Act 1998; the Supreme Court heard argument and delivered judgment on 23 November 2011.