Legal advice not essential before a detainee can be taken to have validly waived the right to legal advice

McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011)

Summary

In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to receive advice from a lawyer in order to effectively waive their right of access to a lawyer under article 6 of the European Convention of Human Rights. The Court did observe, however, that where people are vulnerable or the questioning is long and complex, they may need to be given additional protections to ensure they understand the rights in question.

Facts

The Respondent, ‘B’, was questioned about alleged housebreaking with intent to steal and having in his possession a controlled drug contrary to s 5(2) of the Misuse of Drugs Act 1971. He was offered a consultation with a solicitor prior to the interview but declined the offer. He was ultimately charged with both of these offences.

In advance of the trial, B’s solicitor lodged a Devolution Minute claiming B’s right to legal assistance under article 6(3)(c) of the Convention would be breached if the Crown were to lead evidence of the police interview. It was argued that access to a solicitor should be automatic when someone has been detained in custody.

The propositions in the Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722 (‘Jude’). In that case Lord Justice Clerk said that he could not see how a person could waive his or her right to legal advice when he had not had access to legal advice on the point. In light of the importance raised by this observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended questions for the Court, agreed between the parties, were:

• Whether it would necessarily be incompatible with articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed: had been informed of his or her Salduz/Article 6 rights to legal advice; and without having received advice from a lawyer, had stated that he did not wish to exercise such rights.
• Whether it would be compatible with B’s rights under articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview.

Decision

By a 4-1 majority, the Supreme Court answered the first question in the negative, and remitted the second question to the sheriff.

Lord Hope, in the majority, noted that article 6(1) read with article 6(3)(c) does not expressly require that a person has legal advice before he or she can be taken to have waived the right to legal advice. But the article is to be interpreted broadly by reading into it a variety of other rights to give practical effect to the right to a fair trial.

His Lordship found there was no basis in the jurisprudence of the Strasbourg Court for holding that, as a rule, an accused must have had access to legal advice on the question whether or not he should waive his or her right to consult a solicitor before being interviewed by police. Statements to the contrary in the lower court in Jude should be disapproved. It will ordinarily be sufficient for an accused, having been informed of his or her rights, to state that he does not want to exercise them.

However the Strasbourg cases do show that, in order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal. The court must be alive to the possibility that the words of caution, and notice that the detainee has the right to legal advice, may not be fully understood by everyone. This may depend on all the circumstances, including the age, health, apparent intelligence and state of mind of the person and the likely length and complexity of the interview. Lord Hope (Lords Brown, Dyson and Hamilton agreeing) made two suggestions for improving current practice:

• In order to minimise the risk of misunderstanding, police should point out that the right to speak to a solicitor includes the right to speak to a solicitor on the telephone. If the detainee continues to waive the right the officer should ask the detainee for his or her reasons for waiving his or her right to legal assistance, and record the reasons given; and
• In order fully to apprise a person interrogated of the extent of his or her right, police should inform the detainee not only of the right to legal assistance, but also of the arrangements that may be made if he or she is unable to name a solicitor or is concerned about the cost of employing one.

The majority decided it would not be appropriate to reach a decision on the second question as the issue came before the Court as a reference, not an appeal. As it raised questions of fact it was more appropriately dealt with by the sheriff, after hearing all evidence on the issue.

Lord Kerr would answer both questions in the negative. He would require the suggestions made by Lord Hope to be implemented in every case in order to ensure the waiver is voluntary, informed and unequivocal. No attempt had been made to discover why B had refused to exercise his right to legal assistance in this case. Accordingly it was impossible to say on the available evidence that there had been an unequivocal and informed decision to waive his right.

Relevance to the Victorian Charter

Section 25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right of access to a lawyer similar to that recognised by the Convention. Like article 6(3)(c) of the Convention, s 25(2)(d) explicitly provides that a person charged with a criminal offence is entitled to legal assistance chosen by him or her.

This case clarifies the uncertainty introduced by Jude. If the interpretation in McGowan is adopted and applied in Australia to s 25(2)(d), legal advice as to whether a person should exercise the right to legal advice will not be necessary in every case. However where the person is vulnerable or the questioning is long and complex, the court may find that legal advice is necessary in order to ensure the waiver was voluntary, informed and unequivocal.

Further, police should consider in each case whether additional protections are appropriate. This may include informing the person they can telephone a solicitor, asking why they have declined legal advice, noting down their reasons, and informing them that arrangements can be made if they do not know a solicitor or cannot afford one. Section 25(2)(e) of the Victorian Charter explicitly provides that if a person is eligible for legal aid and does not have legal assistance they are to be told of the right to legal aid.

The decision is available online at: http://www.bailii.org/uk/cases/UKSC/2011/54.html

Emma Newnham is a Summer Clerk with the Mallesons Stephen Jaques Human Rights Law Group