APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon Lady Cosgrove	[2012] HCJAC 165 Appeal No: XC375/12   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995   by   GFR   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: M MacKenzie; Beaumont & Co

Respondent: Wade, AD; Crown Agent

 

21 December 2012

Waiver of the right to a solicitor
[1] The appellant was aged 17 when he was detained by uniformed police officers at the Utopia Bar, Easter Road, Edinburgh at 3 pm on 22 February 2011. A female complainer, who in May 2010 had reported an indecent assault in Easter Road by an unknown and unidentified man, saw the appellant in the bar and thought she recognised him as her attacker. She telephoned the police. Two uniformed officers were told that a potential suspect in an indecent assault was in the Utopia Bar. They were given no further details about the offence. They were instructed to detain him.

[2] The constables arrived at the bar at about 3 pm. They advised the appellant that he was being detained under section 14 of the Criminal Procedure (Scotland) Act 1995 in connection with an allegation of indecent assault. The appellant stated that he did not know what they were talking about. The officers took the appellant to the police station. A detention form was completed, stating the general nature of the offence suspected as "s.14 indecent assault". One officer went through a solicitor access recording form (SARF) with the appellant. In section 1, the suspected offence was recorded as "Indecent assault". In section 2 (Rights of Suspect) the questions and answers were noted as follows:

"Q You have the right to have a solicitor informed of your detention. Do you wish a solicitor advised of your detention?

A No.

Q You also have the right for a private consultation with a solicitor before being questioned by the police and at any other time during questioning. Do you wish a private consultation with a solicitor before you are questioned?

A No."

 

In section 3 (Waiver of Rights) the following statement was read to the appellant:

"You have chosen not to have a solicitor informed of your detention or to have a private consultation with a solicitor. Signing this in no way prevents you from changing your decision at a later time."

 

The appellant signed that section.

[3] The police had information about another incident of indecent assault by an unknown and unidentified man in Albert Street, Edinburgh on 31 May 2010. The officers who were about to interview the appellant had that information, and intended to ask the appellant about both the Easter Road and the Albert Street incidents.

[4] The interview began at 7.14 pm. In the early stages of the interview, the following exchange took place:

"PC ... Can I just confirm that you understand that at the moment you're a detained person

SUSPECT Mm hmm

PC Erm and that you were detained at eh Easter Road

SUSPECT Aye

PC Er today for indecent assault is that correct?

SUSPECT Aye

PC Erm and you were given your rights to have a solicitor contacted

SUSPECT Aye

PC And notified that you were here and a reasonably named person notified that you were here but you declined is that correct?

SUSPECT Well Gordon, I declined the solicitor but my dad ...

PC Your dad

SUSPECT As far as I'm aware

PC Right and you were also offered er a consultation by telephone with a solicitor prior to interview

SUSPECT Mmm hmm

PC And you were offered a consultation in person with a solicitor prior to interview as well

SUSPECT Aye

PC Is that correct?

SUSPECT Aye

PC And what was your answer for that?

SUSPECT No

PC So you declined that as well?

SUSPECT Aye"

 

[5] The appellant was ultimately charged as follows:

"(1) On 30 May 2010, at Easter Road, Edinburgh you ... did assault CL ... and did ask her to have sexual intercourse with you for payment, follow her, seize her by the body, place your hands between her legs and handle her thighs and place her in a state of fear and apprehension for her safety.

 

(2) On 31 May 2010 at Albert Street, Edinburgh you ... did assault GC ... and did follow her, seize her by the body, state that you would pay her to take down her trousers and have sexual intercourse with you, demand that she accompany you to a park, attempt to drag her bodily along the road, struggle with her, attempt to detain her against her will, order her to stop shouting for help, punch her on the head whereby she fell to the ground and place her in a state of fear and apprehension for her safety, all to her injury, and this you did with intent to rape her."

 

Whether waiver "informed"
[6] The focus of this appeal is paragraph 6(i) of the Note of Appeal, which is in the following terms:

"The presiding Sheriff erred in admitting in evidence the appellant's police interview on the basis that he could not be said to have validly or effectively waived his right to legal assistance. This was on the basis:-

 

That the officer who detained him and went over the SARF form with him knew nothing about the circumstances of the alleged offences beyond a basic description of alleged indecent assault. In particular the alleged offences were said to have been committed nine months before the appellant's detention and in fact consisted of an allegation of indecent assault and assault with intent to rape. The appellant could not be said to have been properly appraised of the nature of the allegations against him prior to waiving his right of access to a solicitor. He was not told of the date and locus of the alleged offences. Nor was he told that more than one allegation was being investigated or that one of the allegations was one of assault with intent to rape. The appellant could not be said to be sufficiently informed prior to waiving his right of the nature of the allegations against him. Therefore the waiver cannot be said to be valid or informed."

 

Discussion
[7] Section 14(6) of the Criminal Procedure (Scotland) Act 1995 provides:

"At the time when a constable detains a person under subsection (1) above, he shall inform the person of his suspicion, of the general nature of the offence which he suspects has been or is being committed and of the reason for the detention ...[italics added]"

 

[8] The ACPOS (Association of Chief Police Officers in Scotland) Manual of Guidance on Solicitor Access provides:

"4. Informed waiver

 

4.1 The Act has been considered by many to be one of the most significant changes in Scots Law for generations and the provision of solicitor access is at the heart of the change in the law. The right to access is one which can be waived, but the greatest of care must be taken if the suspect wishes to waive this right. Any waiver of the rights of a suspect must be 'informed' 'voluntary' and 'unequivocal' waiver, and must be fully recorded.

 

4.2 To ensure all suspects are fully informed in their decision, all suspects will be provided a specific form of words, standardised in a manner like the common law caution, when explaining rights to suspects as follows. This standard form of words is contained with the Solicitor Access Recording Form (a copy of which is reproduced at Appendix B of this Manual)."

 

[9] The related SARF form requires completion of the "suspected offence", and other details: see paragraph [2] above.

[10] In McGowan v B 2012 SCCR 109, Lord Hope of Craighead gave the following guidance:

"[17] ... The words 'voluntary, informed and unequivocal' capture the essence of what is needed for a waiver of any kind to be valid ...

 

[46] ... Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily ...

 

[50] ... What we have been given by Strasbourg, as I see it, is a guiding principle as to what is needed for there to be an effective waiver. Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case ...

 

[53] ... questions of fact and degree ... ought properly to be dealt with in the trial court ..."

 

[11] In this particular case, the appellant was advised at the outset that he faced an allegation of indecent assault. That is a serious matter. In our opinion, it was not necessary for the purposes of waiver of the right to a solicitor that the appellant was given any further specification - for example, the precise date or dates, the locus or loci, and whether there was an allegation of one or more incidents. The information given was, in our view, quite sufficient to enable the appellant to decide whether or not he needed access to a solicitor. More than one opportunity was given to the appellant to request access to a solicitor: for example, when the SARF form was being completed, and during the opening questions of the police interview.

[12] The specification of any alleged offence required to be given during an interview with police officers, or when a formal charge is being made, will of course be greater, and (in the latter context) may have been reformulated to some extent as a result of inquiries and the involvement of the procurator fiscal. But for the question at issue here - namely whether the appellant's waiver of his right of access to a solicitor was "voluntary, informed and unequivocal" (Lord Hope in McGowan v B, cit sup) - we are satisfied that, in the circumstances of this case, the appellant was sufficiently advised of the general nature of the allegation against him as to be "informed".

 

Decision
[13] For the reasons given above, we refuse the appeal, and remit to the sheriff to proceed as accords.