FOURTH SECTION

DECISION

Application no. 19923/10
Ryan PATERSON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 22 May 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 29 March 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant Mr Ryan Paterson is a British national who was born in 1984. He is currently detained at HMP Peterhead. After lodging the application himself, the applicant has subsequently been represented before the Court by Mrs Rosemary Cameron, a lawyer practising in Edinburgh with John Pryde & Co SSC.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 12 March 2008 the applicant had sexual intercourse with a woman, W. W. subsequently alleged that the applicant had raped her.

4. The applicant was interviewed by the police without the presence of a lawyer. In the course of the taped interview he admitted having sexual intercourse with W. but maintained that it had been consensual.

5. The applicant was subsequently charged and tried for rape at the High Court of Justiciary at Glasgow. At the trial, the prosecution introduced the taped interview as evidence. On 12 May 2009, the applicant was convicted by a majority verdict of the jury and sentenced to five years’ imprisonment.

6. The applicant applied to the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”), for leave to appeal against conviction and sentence, inter alia on the ground that it was incompatible with Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 for the prosecution to have introduced the police interview as evidence at trial.

7. By letter dated 19 November 2009 the applicant was informed that, on 19 November 2009, the single “sift” judge had refused leave to appeal. The judge stated that the applicant’s grounds were based on this Court’s judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008. However, the Appeal Court’s judgment in HM Advocate v. McLean [2009] HCJAC 97 (which declined to apply Salduz to Scots law: see paragraphs 13-16 below) made clear that these grounds were unarguable

8. By letter dated 3 December 2009 the applicant’s legal advisers intimated their intention to have the refusal of leave to appeal reviewed, and the case papers passed to the “second sift” (review by a panel of three judges). On 15 December 2009 the applicant was informed that the second sift judges had refused the applicant’s appeal against the single sift judge’s decision. They stated that the appeal against conviction was unarguable for the reasons given in McLean. Furthermore, even if the admission of the evidence regarding the interview was erroneous, they did not think it arguable that it had resulted in a miscarriage of justice, having regard to the content of the interview.

9. By letter of 24 December 2009, the applicant’s legal advisers wrote to the High Court of Justiciary stating that the court’s decision of 15 December 2009 represented the determination of a “devolution issue” in the case. (A devolution issue is a dispute as to whether the Scottish authorities, including the Lord Advocate as head of public prosecutions, have acted ultra vires. This includes whether they have acted incompatibly with their obligations under the Convention. A Scottish criminal case can only be appealed to the Supreme Court if a devolution issue arises in it). The letter of 24 December 2009 asked for a procedural hearing to be arranged so that an application for leave to appeal to the Supreme Court could be made.

10. On 5 January 2010 the applicant was informed that the application for a procedural hearing had been considered and refused by the Criminal Appeals Administration Judge for the following reasons:

“The refusal of leave brought this appeal to a conclusion. Contrary to what you maintain in your letter of 24 December, that refusal does not amount to the determination of a devolution issue from which an appeal may lie to the Supreme Court of the United Kingdom. There has been no such determination by the High Court. Quite the contrary, the appeal was not given leave to proceed. This case is at an end and no further procedure is competent.”

B. Relevant domestic law and practice

1. HM Advocate v. McLean [2009] HCJAC 97

11. At the time of the above judgment (and the time of the present applicant’s trial), sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provided that a person detained at a police station had the right to have the fact and place of his detention intimated to a solicitor, but did not have the automatic right of access to a solicitor either prior to or during a police interview.

12. Sections 14 and 15 of the 1995 Act gave legislative effect to the recommendations of the Thomson Committee on criminal procedure in Scotland. The Committee recommended the introduction of a limited or temporary form of arrest, arrest on suspicion, which should be given the separate name of “detention” (as distinct from arrest after a suspect is charged). Detention should not last longer than was necessary in the interests of justice, should be succeeded as soon as possible by either release or arrest, and should not exceed a fixed period of time at the end of which the detained person should either be released or arrested and charged. The Committee considered that while an arrestee should be entitled to an interview with a solicitor, it should be a matter of police discretion whether to allow a detainee an interview with his solicitor. In making this recommendation, the Committee noted that the purpose of interrogation of a suspect/detainee was to obtain from him such information as he might possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.

13. The compatibility of sections 14 and 15 of the 1995 Act with this Court’s judgment in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 was considered by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) in HM Advocate v. McLean.

14. The Appeal Court considered that Salduz was open to interpretation. It could, on the one hand, be read as requiring that every jurisdiction have in place a system where access to a lawyer was ordinarily provided as from the first interrogation of a person, whatever safeguards there may otherwise be for a fair trial. Alternatively, the Court could have required that access to legal advice be seen against the guarantees which were otherwise in place to secure a fair trial.

15. The Appeal Court favoured the latter interpretation. Proceeding on that basis, it was satisfied that the guarantees available under the Scottish system were sufficient to secure a fair trial of someone who was interviewed without access to a lawyer and whose responses were relied on by the prosecution. The Appeal Court stated:

“[27] In the first place it is important to notice that Scots law is particularly jealous to protect a person who has, in the domestic sense, been charged with a crime, that is a person who, having been cautioned that he need not respond, has had read to him by the police the charge or charges which they propose should be preferred against him. Such a person, if arrested, has the right to have a solicitor informed of what has happened and to a subsequent interview with him before his appearance in court. He may not, after caution and charge, be further questioned by the police. He may, if he chooses, make a voluntary statement but that is taken by officers not involved in the inquiry. Problems occasioned by these protections persuaded the Thomson Committee to recommend, and Parliament to endorse, a form of limited or temporary apprehension on suspicion - to which they gave the separate name of ‘detention’. A number of safeguards apply to persons in detention. Before being questioned by the police the detainee must be cautioned that he need not answer any questions put - other than certain formal particulars (section 14(10) [of the 1995 Act]) - but that, if he does answer, his answers will be recorded and may be used in evidence. In all serious cases the interview is tape recorded - and in some cases, as in the present case, video recorded - with the tape or tapes sealed at the conclusion of the interview. While the police may question the detainee, and may do so persistently and robustly, they are not entitled to coerce him or otherwise to treat him unfairly. If they do so, that will render any incriminating answers which he gives inadmissible in evidence at his subsequent trial (Lord Advocate’s Reference (No.1 of 1983) 1984 JC 52). Challenges to admissibility on such grounds may be made either in advance of the trial or in its course. The accused is entitled to give evidence as to the circumstances of the questioning during detention without being required to answer any questions as to the substance of the charge or charges; thus his right to silence at his trial is protected. The onus of proving that any admission made by the accused in the course of detention was fairly elicited is on the prosecution (Thompson v Crowe 2000 JC 173). The trial judge must forthwith rule on