Cadder's growing family

The decisions of the UK Supreme Court on 6 October 2011 in the three references in Ambrose v Harris, HM Advocate v G and HM Advocate v M [2011] UKSC 43, and in the related reference in HM Advocate v P [2011] UKSC 44, all came just as my last column was heading for press, so readers will have had a full opportunity to digest their details. For that reason it is intended here to make only three comments.

First, except in Lord Kerr’s view (he dissented on this and other points), it seems that Strasbourg has not yet spoken with such clarity and authority to make it an inviolable rule that a suspect not yet in custody has a right of access to a lawyer before being questioned by the police unless there are compelling reasons to restrict that right. But even if it does so at some future point, the obligation on courts throughout the UK will still be simply to “take account” of Strasbourg jurisprudence, the meaning of those words being highly controversial.

Secondly, it will often be difficult for police officers on the ground to know just when, in the course of a fast-moving inquiry, the person to whom they happen to be speaking has suddenly turned into someone entitled to legal advice, now that the stage of criminal “charge” (the trigger for the protection of article 6) seems to have moved to a much earlier stage in the inquiry.

Finally (and as with the previous point), the extended meanings given to the terms “interrogation” and “custody” will clearly lead to even greater scrutiny (and secondary control by the courts) of the actions of the police. Those actions cannot be directed by judges, but the fruits of the police’s labours may become forbidden by rules on admissibility of evidence. In the latter area, Strasbourg does not usually speak at all.

These “sons of Cadder” do not mark the end of the story; indeed, they may be only the end of the beginning. The decisions in four cases now styled “grandsons of Cadder” were handed down by the Supreme Court on 23 November: McGowan v B [2011] UKSC 54, and Jude, Hodgson and Birnie v HM Advocate [2011] UKSC 55. Each dealt principally with the situation where a suspect was said to have waived his right to legal assistance before making statements to be later relied on (or intended to be relied on) at trial, but there was also a subsidiary argument in Jude’s appeal based on time bar. In very brief summary, the Crown appeal on the latter point was refused, the court holding that s 100(3B) of the Scotland Act 1998 had no application; but on the waiver point (in the appeal of Birnie and the reference in McGowan) the court once more was divided. The majority held there was no absolute rule that an accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer; there were residual questions of fact and degree on which the cases should be remitted to the respective lower courts. But for Lord Kerr, it was impossible to say (on the material before the court) that either Birnie or the respondent B had effectively waived his right to legal assistance. The Crown appeals in Jude and Hodgson were dismissed. All the cases will be examined in more detail in my next column.

Wilful acts and murder

The effects of the full bench decision in Petto v HM Advocate [2011] HCJAC 78 (see October article) are starting to permeate our case law. There, it was confirmed that it was not necessary for a conviction of murder that the act causing the death constituted an assault in law, provided there was a wilful act (in that case fireraising) committed with the necessary mens rea. So what about the deliberate injection of a large dose of heroin into the arm of someone who, as the accused well knew, was not a heroin abuser, who consented to the administration and who died as a result, even although the deceased (unlike the accused) was unaware of the strength of the dose and even where the accused was warned by others not to inject the deceased with heroin?

This was the situation in Scott v HM Advocate [2011] HCJAC 110 (20 October 2011), where a conviction for murder was upheld. The main point taken in the appeal was whether the trial judge had been correct to direct the jury that if they accepted the Crown evidence as to the circumstances (which it was accepted they were entitled to do), the acts of the appellant amounted to an assault. In holding that there had been no misdirection, the court held that the only reasonable inference to be drawn from the wilful act of injecting the whole contents of the syringe into the deceased was to cause harm and that those actions in the circumstances could only be described as an assault. Consent was immaterial: Khaliq v HM Advocate 1984 JC 23 and cases there discussed. The court also observed that even if the directions on assault should not have been given, such misdirection would have had no material impact on the jury’s consideration of the question whether murder had been proved, as Petto makes clear.

Execution of search warrant

If there was ever any doubt about it, it has now been judicially confirmed that a search warrant granted by a sheriff in one sheriffdom can be executed in another sheriffdom without any further formality. That this is one of the true effects of s 297(1) of the Criminal Procedure (Scotland) Act 1995 was made clear in Ashif v Procurator Fiscal, Glasgow [2011] HCJAC 106 (27 October 2011), where an attempt was made to suspend a warrant granted at Glasgow Sheriff Court for the search of premises in Wishaw occupied by one of two persons charged with fraud. Section 297(1) permits the execution throughout Scotland of “any warrant” without backing or endorsation, in the same way as it might be executed within the jurisdiction of the granter, but it was argued before the appeal court that this provision (particularly in the light of its legislative antecedents) was restricted to apprehension warrants.

This and other arguments based on case law which the court found unhelpful, foundered (said the court) on the appellant’s failure to address the core question of the source and extent of the sheriff’s authority to grant search warrants. The extent of that authority and how it is administered had evolved through judicial practice at least since the time of Alison. As explained by Sheriff Mitchell in Dyer, Petitioner 2008 SCCR 192, at common law the position was that if a search was required outwith the sheriffdom of the granter, a warrant of concurrence was required from the sheriff within whose jurisdiction a search was to take place. But that formality was swept away in 1995 when what became s 297(1) was enacted; but such was the true extent of the innovation.

Indeed, an even greater relaxation of the old formalities has been in force for some time: if the search in the instant case were to occur now, rather than in 2008, it could be carried out not just anywhere in Scotland, but by a constable of any police force or a police member of the Scottish Crime and Drug Enforcement Agency: see s 56 of the Criminal Justice and Licensing (Scotland) Act 2010, in force 13 December 2010. This provision reversed the effect of Dyer, Petitioner, which was concerned not with where a search was to be carried out, but with who was authorised to do so.

Evidential DNA samples

Earlier this year there were two conflicting decisions by single judges of the High Court on the proper limits of s 18(6A) of the Criminal Procedure (Scotland) Act 1995 which, when taken along with s 18(1), permits the police to take, by means of swabbing, a sample of saliva or other material from the inside of the mouth of a person who has been arrested and is in custody, or who has been detained under s 14. Lady Smith decided in Dimmock v HM Advocate, 16 March 2011, unreported, that s 18 could not be interpreted as impliedly covering circumstances where a person has not only been arrested or detained but also where he has been charged; in the latter circumstance, a warrant would be required.

However, a contrary view was taken by Lady Stacey in HM Advocate v Lukstins [2011] HCJAC 69 (7 July 2011). Now, in the Crown appeal in HM Advocate v Cowie [2011] HCJAC 111 (2 December 2011) the views of Lady Smith have been preferred.

The appeal arose out of a decision of a sheriff at a first diet to sustain an objection to the admissibility of DNA evidence from a mouth sample taken from an accused person, after she had been detained for the statutory period and after she had (immediately) been charged; crucially, she had never been arrested. The appeal court rejected a Crown argument that while the change in a person’s status from suspect to person charged was important, it did not affect the scope of ss 14 and 18 of the 1995 Act. On the contrary, said the court, the statutory language of these sections did not permit such samples to be taken from someone in the position of the respondent; it would be a significant inroad into common law principles as to the rights of accused persons. Clear statutory language would have been required to effect such a change; none was apparent and the Crown appeal was refused. Although some reference had been made by both sides to certain Strasbourg jurisprudence, the court reached its conclusions as to the rights of the accused by reference only to the domestic law of Scotland.