//
you're reading...
legal issues

supreme court of U.K.=On 26 October 2010 this Court issued its judgment in Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crown’s reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee under section 14 of the Criminal Procedure (Scotland) Act 1995 gave rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421. This was because the leading and relying on incriminating statements made by the appellant while being interviewed by the police in such circumstances was a violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of the European Convention on Human Rights: see Cadder v HM Advocate, para 63.=Generally speaking the court will shut its face against the admission in evidence of any coerced Page 17 statement (that of a third party is, of course, in any event inadmissible as hearsay); it will, however, admit in evidence the fruit of the poisoned tree. The balance struck here (‘a pragmatic compromise’ as . . . [Lord Bingham describes it]) appears plainly from section 76 of the Police and Criminal Evidence Act 1984. There is, moreover, this too to be said: whereas coerced statements may be intrinsically unreliable, the fruits they yield will have independent evidential value.” 33. If, then, as I believe, the position is that the facts discovered as a result even of a coerced confession are (subject always to the court’s discretionary power under section 78(1) to exclude evidence) admissible in evidence – although not, of course, evidence that it was the accused’s statement that led to the discovery of the fact, ie the situation in Chalmers v HM Advocate [1954] JC 66 itself (see section 76(5) and (6) of PACE) – the position cannot be different (and certainly the prosecution cannot be under greater inhibition) with regard to facts discovered (as here) as a result of a police interview notwithstanding the wrongful failure to provide the accused with legal assistance. 34. If there would be a discretion in the court to admit evidence of, say, a bomb found with the accused’s fingerprints all over it discovered by the police as a result of a confession extracted from him by torture, it surely must be in the court’s discretion to admit oral evidence from the friend in the particular circumstances of the present appeal.

Michaelmas Term

Royal Coat of Arms of the United Kingdom used ...

Image via Wikipedia


[2011] UKSC 44
JUDGMENT
REFERENCE – Her Majesty’s Advocate v P
(Scotland)
before
Lord Hope, Deputy President
Lord Brown
Lord Kerr
Lord Dyson
Lord Matthew Clarke
JUDGMENT GIVEN ON
6 October 2011
Heard on 28, 29 and 30 June 2011
Appellant Respondent
Frank Muholland QC,
Lord Advocate
Matthew Auchincloss
Joanna Cherry QC
Catherine Devaney
(Instructed by the Crown
Agent, Crown Office)
(Instructed by Public
Defence Solicitors Office)
Page 2
LORD HOPE (WITH WHOM LORD DYSON, LORD KERR AND LORD
MATTHEW CLARKE AGREE)
1. On 26 October 2010 this Court issued its judgment in Cadder v HM
Advocate [2010] UKSC 43, 2010 SLT 1125. It held that the Crown’s reliance on
admissions made by an accused who had no access to a lawyer while he was being
questioned as a detainee under section 14 of the Criminal Procedure (Scotland) Act
1995 gave rise to a breach of his right to a fair trial, having regard to the decision
of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421.
This was because the leading and relying on incriminating statements made by the
appellant while being interviewed by the police in such circumstances was a
violation of his rights under article 6(3)(c) read in conjunction with article 6(1) of
the European Convention on Human Rights: see Cadder v HM Advocate, para 63.
2. The evidence that was in question in Cadder consisted of incriminating
statements that the appellant made when he was being questioned while in
detention at a police station. The applicant in Salduz too had been taken into
custody before he was interrogated during his detention by police officers of the
anti-terrorism branch of the Izmir Security Directorate. But the facts of those cases
by no means exhaust the situations in which the Crown may seek to rely on
answers to questions that have been put to the accused by the police. The Court
now has before it four references by judges of the High Court of Justiciary which
have been required by the Lord Advocate under paragraph 33 of Schedule 6 to the
Scotland Act 1998. Three of them are cases where the evidence in question was
obtained by the police otherwise than by questioning at a police station following
detention under section 14 of the 1995 Act. The fourth is concerned with whether
the ratio of the decision in Salduz extends to lines of enquiry which have been
derived from answers that the accused gave to questions while he was being
detained in the police station.
3. Common to all four cases is the fact that incriminating answers were given
to questions put by the police when the accused did not have access to legal
advice. In each case this occurred before the judgment was given in Cadder. The
issue that the first three references raise is whether the decision in Salduz to which
Cadder gave effect has established that anyone who has been “charged” with an
offence, so that article 6 is engaged, and is then questioned by the police is entitled
to access to a lawyer at that stage; or whether the right of access to a lawyer
applies only where the accused is being subjected to police questioning while in
custody. These cases can be grouped together under the general heading “predetention
questioning”. I propose to deal with them in a separate judgment:
Ambrose v HM Advocate [2011] UKSC 43.
Page 3
4. The issue in the fourth reference, which is the subject of this judgment, is
whether the Salduz principle extends to the use of any evidence whatever, the
existence of which was discovered as a result of answers given by the accused
while in custody without access to legal advice; or whether the principle does not
extend to evidence which, although its existence was derived from those answers,
has an independent life of its own and does not require to be linked to those
answers in order to support the Crown’s case. Evidence of this kind has been
referred to as “the fruit of the poisonous tree”: see Stephen C Thaman, “Fruits of
the Poisonous Tree” in Comparative Law, (2010) 16 Southwestern Journal of
International Law 333, 335, fn 5. The use of such evidence was at one time
thought to have been excluded in the United States of America, but the doctrine
has been relaxed in favour of admissibility by decisions of the US Supreme Court.
In Murray v United States 487 US 533 (1988), paras 7-8, the test that was applied
by Scalia J was whether the search pursuant to a warrant was a genuinely
independent source of the information relied on by the prosecutor. The question
which we have to decide depends on an analysis of the jurisprudence of the
European Court of Human Rights at Strasbourg.
The facts
5. This is a case which has not yet gone to trial, so the names of those
involved have been anonymised. The reference has been made at the request of the
Lord Advocate by the trial judge, Lord Bracadale. The accused, referred to as P,
has been indicted in the High Court of Justiciary on a charge of assault and rape
which was alleged to have taken place on 10 and 11 October 2009. On 11 October
2009 he was detained under section 14 of the 1995 Act in connection with the
allegation which had been made against him by the complainer. He was taken to a
police station where he was interviewed. He was not given access to legal advice
prior to or during the interview. He was asked where he had been on the date of the
alleged rape. The locus of the complaint was a short walking distance from a pub
where he and the complainer met. He said that, prior to the alleged assault and
rape, he had taken a powdered substance at another pub that had provoked an
adverse reaction.
6. His interview then continued in these terms:
“Q- … Are there people that you, you could say that would back up
how you were reacting to that?
A – Erm, yeah, yeah, there would be yeah.
Page 4
Q – Who are they?
A – Erm could say my best mate I suppose
Q – Who’s that?”
He then gave his friend’s name and address to the police and added that his friend
would be able to back him up. The police subsequently took a statement from his
friend in which he spoke to the accused’s reaction after he had taken a drug and
provided support for what the accused had said about this. But he also described
having a telephone conversation with the accused on the morning of 11 October
2009 in which the accused described meeting a woman the previous night and
having consensual sexual intercourse with her.
7. The accused lodged a devolution minute in which he submitted that his
rights under article 6(3) would be contravened if the Crown were permitted to
elicit evidence of his police interview, and that the evidence of his friend about the
telephone conversation was incriminatory evidence which had been obtained as a
direct result of his replies during the police interview and that the Crown should
not be permitted to lead this evidence. A diet of debate was then fixed, prior to
which written submissions were lodged on behalf of the Crown and the accused. In
its written submissions the Crown accepted that any incriminatory statements that
the accused made during his police interview without having had access to legal
advice were inadmissible. But it indicated that it proposed to lead the friend’s
evidence at the trial, and in particular to elicit from him evidence of what the
accused said to him during his telephone conversation with the accused.
8. At the diet of debate, prior to any argument, the then Lord Advocate
intimated that she required the court to make a reference to this court. The
questions that were then referred by the trial judge are in these terms:
“(i) Whether the act of the Lord Advocate in leading and relying on
evidence obtained from information disclosed during the course of a
police interview with an accused person conducted in accordance
with section 14 of the Criminal Procedure (Scotland) Act 1995
without the accused person having had access to legal advice would
be incompatible with the accused person’s rights under article 6(1)
and 6(3)(c) of the European Convention on Human Rights, having
regard in particular to the decision of the Supreme Court of the
United Kingdom in Cadder v HM Advocate 2010 SLT 1125.
Page 5
(ii) Whether the act of the Lord Advocate in leading and relying on
evidence in these proceedings from Crown witness number 13 [SF]
(whose identity was disclosed to the police, and thereby the Crown,
during the course of a police interview with the accused conducted in
accordance with section 14 of the Criminal Procedure (Scotland) Act
1995 on 11 October 2009 without the accused having had access to
legal advice), would be incompatible with the accused’s rights under
article 6(1) and 6(3)(c) of the European Convention on Human
Rights.”
9. In Cadder v HM Advocate 2010 SLT 1125, para 48 I said that, although it
was held in Gäfgen v Germany (2010) 52 EHRR 1 that there had been no violation
of articles 6(1) and 6(3) as the evidence that had been secured as a result of
interrogation in that case did not have bearing on the applicant’s conviction and
sentence, the decision served a warning that the Salduz principle could not be
confined to admissions made without access to legal advice during police
questioning. In para 50 I said that the guarantees that are otherwise available under
the Scottish system were incapable of removing the disadvantage that a detainee
will suffer if he says something which enables the police to obtain incriminating
evidence from other sources which is then used against him at his trial. The
question that this reference raises is whether the Convention jurisprudence shows
that there is an exclusionary rule to this effect of the kind described in Salduz as
my observations in these paragraphs might be taken to have suggested, or whether
evidence which was obtained because of things learned because of what the
detainee said during such police questioning but exists independently of it will
normally be admissible. Does the rule extend to evidence derived from his answers
but which can speak for itself, without it being necessary to refer for support or
explanation to anything the detainee said in the course of his police interview?
10. As this is a devolution issue, guidance as to how these questions should be
answered must be found in the jurisprudence of the European Court of Human
Rights at Strasbourg. The position as regards evidence obtained from the accused
which is not derived from anything that the accused said to the police at his
interview is not in doubt. As the court is primarily concerned with the right to
remain silent, the right not to incriminate oneself does not extend to incriminating
evidence that has been obtained from him other than by reference to what he has
said. In Saunders v United Kingdom (1996) 23 EHRR 313, para 69 the Court
observed that, as commonly understood in the legal systems of the contracting
parties to the Convention and elsewhere the right not to incriminate oneself does
not extend to the use in criminal proceedings of material which may be obtained
from the accused through the use of compulsory powers but which has an
existence independent of the will of the suspect such as, inter alia, documents
acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue
Page 6
for DNA testing. It returned to the point in Jalloh v Germany (2006) 44 EHRR
667, para 102 where it said:
“The Court has consistently held, however, that the right not to
incriminate oneself is primarily concerned with respecting the will of
an accused person to remain silent. As commonly understood in the
legal systems of the contacting parties to the Convention and
elsewhere, it does not extend to the use in criminal proceedings of
material which may be obtained from the accused through the use of
compulsory powers but which has an existence independent of the
will of the suspect such as, inter alia, documents acquired pursuant to
a warrant, breath, blood, urine, hair or voice samples and bodily
tissue for the purpose of DNA testing.”
11. The court said in Jalloh, para 101 that in examining whether a procedure
has extinguished the very essence of the privilege against self-incrimination, it will
have regard, in particular, to the nature and degree of the compulsion, the existence
of any relevant safeguards in the procedures and the use to which any material so
obtained is put. But the question whether respecting the will of an accused person
to remain silent means that anything that is derived from what he said at a police
interview which was incompatible with his rights under articles 6(1) and 6(3)(c)
must always be excluded was not resolved by that statement. Where the only
reason why the answers that he gave at his interview are inadmissible is that he did
not have access to a lawyer when he was being interviewed, the decision in Salduz
must be the starting point. But it is only the starting point, as it will be necessary
to look at what can be derived from what the Strasbourg court has said since
judgment in that case was given.
12. The Advocate Depute submitted that, as Strasbourg has not spoken,
evidence of this kind should be regarded prima facie as admissible. For the
accused Mr Auchincloss said that he was not contending for an absolute
exclusionary rule. He directed his argument instead to the particular circumstances
of this case. His point was that, but for what the accused told the police when he
was interviewed, the police would not have gone to his friend at all. The effect of
imparting this information to the police was that he had incriminated himself. That
was enough for the friend’s evidence about the telephone conversation to be
inadmissible.
Background
13. The general rule, so far as Strasbourg is concerned, is that the rules about
the admissibility of evidence are for the contracting states. In Schenk v Switzerland
Page 7
(1988) 13 EHRR 242, which was a case about unlawful telephone tapping, the
court said in para 46:
“While article 6 of the Convention guarantees the right to a fair trial,
it does not lay down any rules on the admissibility of evidence as
such, which is therefore primarily a matter for regulation under
national law. The court therefore cannot exclude as a matter of
principle and in the abstract that unlawfully obtained evidence of the
present kind may be admissible. It has only to ascertain whether Mr
Schenk’s trial as a whole was fair.”
The same approach to cases raising questions about article 6 rights generally is to
be found in a great many cases. In Gäfgen v Germany (2010) 52 EHRR 1, paras
162-163 the court said:
“162. … While article 6 guarantees the right to a fair hearing, it does
not lay down any rules on the admissibility of evidence as such,
which is primarily a matter for regulation under national law.
163. It is, therefore, not the role of the court to determine, as matter
of principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law may be
admissible. The question which must be answered is whether the
proceedings as a whole, including the way in which the evidence was
obtained, were fair. This involves an examination of the
unlawfulness in question and, where the violation of another
Convention right is concerned, the nature of the violation found.”
14. As Lord Bingham of Cornhill said in Brown v Stott 2001 SC (PC) 43, 50,
what a fair trial requires cannot be the subject of a single, unvarying rule or
collection of rules. Article 6(1) has been interpreted broadly by reading into it a
number of other rights to which the accused person is entitled. Their purpose is to
give effect, in a practical way, to the fundamental and absolute right to a fair trial.
This approach is to be found also in Salduz, para 52, where the court took the
following propositions as its starting point for the issue it was addressing in that
case:
“National laws may attach consequences to the attitude of an accused
at the initial stages of police interrogation which are decisive for the
prospects of the defence in any subsequent criminal proceedings. In
such circumstances, article 6 will normally require that the accused
Page 8
be allowed to benefit from the assistance of a lawyer already at the
initial stages of police interrogation. However, this right has so far
been considered capable of being subject to restrictions for good
cause. The question, in each case, has therefore been whether the
restriction was justified and, if so, whether, in the light of the entirety
of the proceedings, it has not deprived the accused of a fair hearing,
for even a justified restriction is capable of doing so in certain
circumstances.”
It is not for this court to say how the matter should be dealt with in domestic Scots
law: see Fraser v HM Advocate [2011] UKSC 24, 2011 SLT 515, para 11. But it is
proper for it to take note of how the law stands on this issue as part of the
background because the domestic requirement of fairness will need to be satisfied
in any event for such evidence to be admissible.
15. As Lord Justice Clerk Thomson said in Chalmers v HM Advocate 1954 JC
66, 81, the law has to reconcile two principles: (1) that no accused person is bound
to incriminate himself, and (2) that what an accused person says is admissible
evidence against him, provided he says it freely and voluntarily. There is no reason
to think that what the accused’s friend says the accused said to him in the
telephone conversation was not said freely and voluntarily. It was, in part at least,
incriminatory, as the accused is said to have admitted to having had sexual
intercourse with the complainer at the locus, albeit consensually. But this, of itself,
does not make it inadmissible. The assumption is, however, that the police would
not have obtained this evidence but for what the accused told the police when he
was interviewed. The question is whether, if the Crown cannot show that the
assumption is incorrect, the fact that the source of their information was the
accused himself renders the friend’s evidence inadmissible.
16. The Advocate Depute submitted that no clear answer to this question
emerges from the Scottish case law. There is no doubt as to where the law stands
if, as in Chalmers, the evidence which the police discovered as a result of what
they were told by the accused when he was interviewed would not have been
relevant without linking it to what was said by the accused. Lord Justice General
Cooper said that he regarded the appellant’s visit under the surveillance of the
police to the cornfield where the purse was found as part and parcel of the same
transaction as the interrogation: 1954 JC 66, 76:
“if the interrogation and the ‘statement’ which emerged from it are
inadmissible as ‘unfair’, the same criticism must attach to the
conducted visit to the cornfield.”
Page 9
He returned to the point later on the same page, when he said:
“The significance of the episode is plain, for it showed that the
appellant knew where the purse was. If the police had simply
produced, and proved the finding of, the purse, that evidence would
have carried them little or no distance in this case towards
implicating the appellant. It was essential that the appellant should
be linked up with the purse, either by oral confession or by its
equivalent – tacit admission of knowledge of its whereabouts as a
sequel to the interrogation.”
The effect of the decision in Salduz, as explained in Cadder, is that evidence of
that kind, which must inevitably be linked to what the detainee said to the police
without access to a lawyer while he was being interviewed if it is to be used to
incriminate him, will always be inadmissible. That is what I had in mind when I
drew attention in Cadder, paras 48 and 50, to the fact that exclusion of evidence on
the Salduz principle could not be confined to the admissions made during police
questioning.
17. As for the position where the evidence that has been discovered as a result
of what was said at the police interview can speak for itself, the guiding principle
in Scots law is to be found in Lawrie v Muir 1950 JC 19. It was laid down by a full
bench in that case that an irregularity in the method by which evidence has been
obtained does not necessarily make that evidence inadmissible in a criminal
prosecution. Lord Justice General Cooper explained the basis for this approach at
p 26:
“From the standpoint of principle it seems to me that the law must
strive to reconcile two highly important interests which are liable to
come into conflict – (a) the interest of the citizen to be protected
from illegal or irregular invasions of his liberties by the authorities,
and (b) the interest of the State to secure that evidence bearing upon
the commission of crime and necessary to enable justice to be done
shall not be withheld from Courts of law on any merely formal or
technical ground. Neither of these objects can be insisted upon to
the uttermost.”
He went on at p 27 to approve Lord Justice Clerk Aitchison’s statement in HM
Advocate v McGuigan 1936 JC 16 at p 18, that an irregularity in the obtaining of
evidence does not necessarily make that evidence inadmissible. The irregularity in
Lawrie was that the inspectors had conducted a search of the appellant’s premises
which they had no right to carry out. But the decision has a much wider
Page 10
application. It was referred to by the Scottish Law Commission in their Research
Paper on the Law of Evidence of Scotland, written by I D Macphail, later the Hon
Lord Macphail, (1979, reissued and updated 1987) when it was considering the
effect of the decision in Chalmers. They took from what Lord Justice General
Cooper said at p 76 that the evidence of the finding of the purse by the police
would not have been treated as inadmissible if it had been capable of being led as
relevant evidence without reference to the appellant’s confession. In para 21.04
they concluded that, while logic might demand that such evidence should, together
with the confession, be inadmissible, logic must yield in favour of a flexible rule
which was consistent with the modern Scottish decisions on illegal searches and
seizures in criminal cases.
18. It is no doubt true, as the Advocate Depute said, that no clear answer
emerges from the Scottish case law. But there is good reason to think that the
approach laid down in Lawrie v Muir, which is entirely consistent with the
approach of the Strasbourg court to national rules as to the admissibility of
evidence, would be adopted. The law of England and Wales is to the same effect.
Section 58 of the Police and Criminal Evidence Act 1984 provides that a person
arrested and held in custody in a police station or other premises shall be entitled,
if he so requests, to consult a solicitor privately at any time. Section 76(4) provides
that a confession that is wholly or partly excluded does not affect the admissibility
of any facts discovered as a result of the confession. Under section 78(1) of that
Act a breach of section 58 may lead to the exclusion of evidence as to what the
person said under police questioning, including any evidence that has been derived
from it. But evidence improperly obtained in this way is not invariably
inadmissible, as section 78(1) requires the court to have regard to all the
circumstances. Ultimately the question is whether it would or would not be fair to
admit the evidence: R v Looseley [2001] UKHL 53, [2001] 1 WLR 2060 (a case of
entrapment), per Lord Nicholls of Birkenhead at para 19. The question that the
reference raises, therefore, is whether there is anything in the Strasbourg
jurisprudence which lays down that any evidence discovered as a result of what a
detainee who was without access to a lawyer said during his police interview must
always, as a rule, be held to be inadmissible in the absence of compelling
circumstances to restrict the right of access. If that were so, it would be a
considerable innovation on what, so far, has been thought to be the position in
Scots law.
Discussion
19. Nothing that was said in Salduz offers any guidance as to how this question
should be answered. The point was not in issue in that case. In para 54 the court
said that the assistance of a lawyer to ensure respect of the right of an accused not
to incriminate himself presupposed that the prosecution in a criminal case will seek
to prove their case without resort to evidence obtained through methods of
Page 11
coercion or oppression in defiance of the will of the accused. Reference was made
in a footnote to Jalloh v Germany (2006) 44 EHRR 667, para 100 and to Kolu v
Turkey, application no 35811/97, para 51. Neither of these cases was concerned
with evidence that was derived from what was said during interrogation by the
police.
20. But Gäfgen v Germany (2010) 52 EHRR 1 was a case of that kind. The
applicant abducted and killed a child and then demanded a ransom from his family.
He was arrested by the police, who had kept him under surveillance after he
collected the ransom payment. Hoping that the child was still alive, the police
questioned him about the child’s whereabouts. In reply to their questions the
applicant said that the child was being held by another kidnapper. He was then
allowed to consult a lawyer. Under later questioning he indicated that the boy had
been kidnapped by two other people who had hidden him in a hut by a lake. Early
the next day he was subjected to threats of extreme violence if he did not tell the
police where the child was. For fear of being exposed to the measures he was
threatened with he disclosed the whereabouts of the child’s body. He was then
taken to the place which he had indicated and, while being filmed, pointed out its
precise location.
21. In para 173 the court noted that it was being called upon to examine the
consequences for a trial’s fairness of the admission of real evidence obtained as a
result of an act which qualified as inhuman treatment in breach of article 3, but
falling short of torture. It referred to what it had said in paras 166-167 in its review
of the relevant principles, where it stated that incriminating real evidence obtained
as a result of acts of violence should never be relied on as proof of a victim’s guilt,
irrespective of its probative value. The court went on in para 173 to observe that,
in its case law to date, it had not yet settled the question whether the use of such
evidence will always render a trial unfair, irrespective of other circumstances of
the case. It had however found that the use of statements obtained as a result of a
person’s treatment in breach of article 3, and the use of real evidence obtained as a
direct result of acts of torture, made the proceedings as a whole automatically
unfair, in breach of article 6: Göçmen v Turkey (application no 72000/01)
(unreported) given on 17 October 2006, paras 73-74.
22. There then followed this important paragraph, in which the court picked up
a point that it had already noted in para 69:
“174. The Court notes that there is no clear consensus among the
contracting states to the Convention, the courts of other states and
other human-rights monitoring institutions about the exact scope of
application of the exclusionary rule. In particular, factors such as
whether the impugned evidence would, in any event, have been
Page 12
found at a later stage, independently of the prohibited method of
investigation, may have an influence on the admissibility of such
evidence.”
In para 73 the court referred to indications in the case law of the United States that
the exclusionary rule does not apply where the connection between the illegal
police conduct and the discovery of the evidence was so remote as to dissipate the
taint, as where the police relied on an independent source to find the evidence or
where it would ultimately have been discovered even had no violation of any
constitutional provision taken place. In para 74 it referred to the judgment of the
Supreme Court of Appeal in South Africa in Mthembu v The State (379/2007)
[2008] ZASCA 51, where the impugned evidence was excluded because there was
an inextricable link between the accused’s torture and the nature of the evidence
that was produced. In para 33 of its judgment the court said that there was no
suggestion that the discoveries would have been made in any event and that, if
they had, the outcome might have been different.
23. There is an obvious link between the situation that was before the court in
Gäfgen and that in Chalmers. Under the law as set out in Chalmers, the evidence
that the accused pointed out the precise location of the body to the police would
have been held to have been inadmissible. It was part and parcel of the same
transaction as the interrogation. But that is not this case. The court in Gäfgen,
which was primarily concerned with the consequences of a violation of article 3,
did not find it necessary to resolve this issue to which it drew attention in para 174.
It held that, having regard to the particular circumstances of that case, the failure to
exclude the impugned evidence did not have a bearing on the applicants conviction
and sentence, so there had been no violation of articles 6(1) and 6(3): paras 187-
188. In a joint partly dissenting opinion Judges Rozakis, Tülkens, Jebens, Ziemele,
Bianku and Power said that in their view there had been a violation of those
articles, but this was because the evidence had been obtained as a direct result of a
violation of article 3. Where the boundary lies between what the Convention
requires to be automatically excluded because it is derived from what the person
has said and what is not remains unclear. There have been no other cases that deal
with the issue since Gäfgen to which we can look for guidance. But at least it can
be said that the Strasbourg court has not suggested that leading evidence of the
fruits of questioning that is inadmissible because the accused did not have access
to a lawyer when he was being interviewed will always and automatically violate
the accused’s rights under article 6(1) and 6(3)(c).
24. In Salduz para 53 the court said that the principles which it had outlined in
para 52 (see para 14, above) were in line with the generally recognised
international standards. The same point emerges from the passages in Gäfgen to
which I have just referred: see para 22, above. So I think that regard can be had to
the position in England and Wales which is dealt with in section 76 of the Police
Page 13
and Criminal Evidence Act 1984, as Lord Brown has explained: see para 32,
below. Subject to the court’s discretionary power to exclude it under section 78(1),
evidence derived from an involuntary statement which can be adduced without
having to rely on that statement is admissible. And further assistance may be found
in the approach which was taken to this issue in the Supreme Court of Canada in
Thomson Newspapers Ltd v Canada (Director of Investigation and Research)
[1990] 1 SCR 425, to which the Court’s attention does not appear to have been
drawn in Gäfgen.
25. Among the issues that were before the court in that case was the question
whether section 17 of the Combines Investigation Act 1970, which provides that
the Restrictive Trade Practices Commission may order that a person be examined
on oath and make production of books, papers, records or other documents, was
inconsistent with the provisions of sections 7 and 8 of the Canadian Charter of
Rights and Freedoms. Section 7 includes among its provisions the right not to be
deprived of liberty except in accordance with the principles of fundamental justice.
It was argued that section 17 was contrary to two principles of fundamental justice,
namely the right against self-incrimination and the right to remain silent. One of
the questions in the case was whether the protection of article 7 extended to
derivative evidence. Two other provisions of the Charter were relevant to this
issue: section 11(c), which provides that a person is protected against being
compelled to give evidence in proceedings that have been brought against him, and
section 13, which provides the person with a limited right against selfincrimination.
The court was divided on the question whether the use of derivative
evidence, which fell outside the protections of articles 11(c) and 13, was
nevertheless contrary to the principles of fundamental justice. Wilson J, in a
dissenting opinion said that because there was a direct causal relationship between
the compelled testimony and the derivative evidence the privilege against selfincrimination,
if it was to be meaningful, requires that neither the testimony nor
the evidence derived from it should be used against him: para 69. Lamer J,
declined to pronounce on this issue: para 5. But La Forest, L’Heureux-Dubé and
Sopinka JJ said that, to the extent that it authorised an order to compel the
production of documents, section 17 did not contravene section 7 of the Charter:
paras 225, 270, 327.
26. The reasons that La Forest J gave for holding that there was no breach of
the principles of fundamental justice are particularly instructive. He said that there
were serious grounds on which objection can be raised to an absolute rule that
testimonial immunity must always extend to evidence derived from compelled
testimony:
“199. …While allowing the Crown to use such evidence in criminal
proceedings may in a formal sense be equivalent to permitting direct
reliance on the compelled testimony itself, there is an important
Page 14
difference between the type of prejudice that will be suffered in the
two cases. It is only when the testimony itself has to be relied on that
the accused can be said to have been forced to actually create selfincriminatory
evidence in his or her own trial. The compelled
testimony is evidence that simply would not have existed
independently of the exercise of the power to compel it; it is in this
sense evidence that could have been obtained only from the accused.
200. By contrast, evidence derived from compelled testimony is, by
definition, evidence that existed independently of the compelled
testimony. This follows logically from the fact that it was evidence
which was found, identified or understood as a result of the ‘clues’
provided by the compelled testimony. Although such evidence may
have gone undetected or unappreciated in the absence of the
compelled clues, going undetected or unappreciated is not the same
thing as non-existence. The mere fact that the derivative evidence
existed independently of the compelled testimony means that it could
have been found by some other means, however low the probability
of such discovery may have been.”
He went on to say in para 202 that the fact that the derivative evidence exists
independently of the compelled testimony also means that its quality as evidence
and its relevance to the issues in the trial do not depend on its past connection with
the compelled testimony. These are matters which can be determined
independently of any consideration of its connection with the testimony of the
accused.
27. One must, of course, be careful about drawing conclusions from a Canadian
case, as the provisions of the Charter differ both in their structure and their
wording from those of the Convention. But the concept of fundamental justice is
by no means alien to the European concept of a fair trial, which lies at the heart of
article 6(1). So I think that the reasoning which La Forest J set out in these
paragraphs can be regarded as providing support for the conclusion that I would
draw from what Strasbourg has said so far on this issue. This is that there is no
absolute rule that the fruits of questioning of an accused without access to a lawyer
must always be held to be a violation of his rights under article 6(1) and 6(3)(c) of
the Convention. It is one thing if the impugned evidence was created by answers
given in reply to such impermissible questioning. The leading of such evidence
will be a breach of the accused’s Convention rights unless there are compelling
reasons to restrict the right of access: Cadder, para 55. It is another thing if the
evidence existed independently of those answers, so that those answers do not
have to be relied upon to show how it bears upon the question whether the accused
is guilty of the offence with which he has been charged. So far as the accused’s
Convention rights are concerned, there is no rule that declares that evidence of that
Page 15
kind must always be held to be inadmissible. The question whether it should be
admitted has to be tested, as in domestic law, by considering whether the accused’s
right to a fair trial would be violated by the leading of the evidence.
Conclusion
28. I would answer question (i) of the questions referred, which is addressed to
the issue of principle, in the negative. There is no absolute rule to this effect, as the
wording of the question suggests. I would decline to answer question (ii), as it
raises a question for determination by the trial judge. The question for him will be
whether, if the Crown were to lead and rely on the friend’s evidence about the
telephone conversation, the accused would, in all the circumstances, be deprived of
his fundamental right under article 6(1) to a fair trial.
LORD BROWN
29. I have had the advantage of reading Lord Hope’s judgment in draft and am
in full agreement with all that he says and with the way in which he proposes we
should deal with the two questions raised by this Reference. The conclusion he
arrives at is, to my mind, entirely consistent with the position which I believe to be
clearly established under English law – and, I hope we may all agree, none the
worse for that.
30. Although Lord Hope (at para 18) has already referred to section 78(1) of the
Police and Criminal Evidence Act 1984 (PACE) and noted its obvious relevance in
the context of any breach of section 58 of PACE, it is, I think, worth setting out its
terms verbatim and briefly then looking also at section 76 of PACE.
31. Section 78(1) of PACE is a general provision under the heading Exclusion
of unfair evidence and provides:
“In any proceedings the court may refuse to allow evidence on which
the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of
the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.”
Page 16
32. Section 76, under the heading Confessions, provides (I summarise) that,
notwithstanding that it may be true, a disputed confession shall not be admissible
in evidence unless the prosecution prove it not to have been obtained “by
oppression” or “in consequence of anything said or done which was likely, in the
circumstances existing at the time, to render unreliable any confession which
might be made by him in consequence thereof.” Particularly noteworthy for
present purposes, however, is section 76(4):
“The fact that a confession is wholly or partly excluded in pursuance
of this section shall not affect the admissibility in evidence – (a) of
any facts discovered as a result of the confession; or (b) where the
confession is relevant as showing that the accused speaks, writes or
expresses himself in a particular way, of so much of the confession
as is necessary to show that he does so.”
As Lord Bingham of Cornhill observed in A v Home Secretary (No 2) [2006] 2 AC
221, 249 (at para 16):
“[T]here is an obvious anomaly in treating an involuntary statement
as inadmissible while treating as admissible evidence which would
never have come to light but for the involuntary statement. But this
is an anomaly which the English common law has accepted, no
doubt regarding it as a pragmatic compromise between the rejection
of the involuntary statement and the practical desirability of relying
on probative evidence which can be adduced without the need to rely
on the involuntary statement.”
I too sought to deal with the point at para 161:
“Several of your Lordships have remarked on the tensions in play
and have noted the balances struck by the law, different balances
according to whether one is focusing on the executive or the judicial
arm of the state. Essentially it comes to this. Two types of
information are involved: first, the actual statement extracted from
the detainee under torture (‘the coerced statement’); second, the
further information to which the coerced statement, if followed up,
may lead (‘the fruit of the poisoned tree’ as it is sometimes called).
Generally speaking it is accepted that the executive may make use of
all information it acquires: both coerced statements and whatever
fruits they are found to bear. . . . So far as the courts are concerned,
however, the position is different. Generally speaking the court will
shut its face against the admission in evidence of any coerced
Page 17
statement (that of a third party is, of course, in any event
inadmissible as hearsay); it will, however, admit in evidence the fruit
of the poisoned tree. The balance struck here (‘a pragmatic
compromise’ as . . . [Lord Bingham describes it]) appears plainly
from section 76 of the Police and Criminal Evidence Act 1984.
There is, moreover, this too to be said: whereas coerced statements
may be intrinsically unreliable, the fruits they yield will have
independent evidential value.”
33. If, then, as I believe, the position is that the facts discovered as a result even
of a coerced confession are (subject always to the court’s discretionary power
under section 78(1) to exclude evidence) admissible in evidence – although not, of
course, evidence that it was the accused’s statement that led to the discovery of the
fact, ie the situation in Chalmers v HM Advocate [1954] JC 66 itself (see section
76(5) and (6) of PACE) – the position cannot be different (and certainly the
prosecution cannot be under greater inhibition) with regard to facts discovered (as
here) as a result of a police interview notwithstanding the wrongful failure to
provide the accused with legal assistance.
34. If there would be a discretion in the court to admit evidence of, say, a bomb
found with the accused’s fingerprints all over it discovered by the police as a result
of a confession extracted from him by torture, it surely must be in the court’s
discretion to admit oral evidence from the friend in the particular circumstances of
the present appeal.

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,897,194 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: