LANG v. THE UNITED KINGDOM AND HASTIE v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
1. These cases concern two applicants who in 2008 were convicted in separate, unrelated criminal proceedings in Scotland. The common complaint in the applications is that each applicant was interviewed by the police without access to a lawyer and the evidence obtained from that interviewed was relied on by the prosecution at trial. 2. The first applicant, Mr John Paul Lang, is a British national who was born in 1974. He is currently detained at HMP Glenochil. He is represented before the Court by Mrs Rosemary Cameron, a lawyer practising in Edinburgh with John Pryde & Co SSC. 3. The second applicant, Ms Tracey Hastie, is also a British national. She was born in 1970 and is currently detained at HMP Cornton Vale. She is represented by Jim Friel, a lawyer practising in Glasgow with Jim Friel & Co Solicitors. 4. The facts of the case, as submitted by the first applicant, may be summarised as follows. 5. In the early hours of Saturday 21 April 2007, the first applicant had a sexual encounter with a woman who was spending the night at his flat. Later that morning the woman attended a police station where she made an allegation of rape against him. The first applicant was then detained by the police and interviewed by them without the presence of a lawyer. In the interview he made a statement that he and the woman had had consensual sex. He was subsequently charged with rape and tried on indictment at the High Court of Justiciary sitting at Paisley between 7 and 11 June 2008. At trial the prosecution relied on the statement the first applicant had given to the police. On 11 June 2008, he was convicted by a majority verdict of the jury. He did not appeal against his conviction. 6. On 22 October 2010, four days before the delivery of the judgment of the Supreme Court in Cadder v. HM Advocate [2010] UKSC 43 (see paragraphs 15–17 below), the first applicant applied to the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) for an extension of time in which to lodge an appeal against conviction and sentence. In the Note of Appeal which accompanied the application for an extension of time, the first applicant submitted inter alia that his trial had been unfair because he had not been give access to a lawyer while in police custody and the prosecution had relied on the contents of his police interview at trial. 7. The application for an extension of time was initially refused by a Single Judge and then, following an oral hearing on 17 November 2010, by a bench of three judges. 8. The facts of the case, as submitted by the second applicant, may be summarised as follows. 9. On 22 July 2008, after a trial at the High Court of Justiciary sitting at Glasgow, the second applicant was convicted of murder. In the course of the trial, the prosecution had relied on statements given by the second applicant in the course of a police interview, which took place on 3 November 2006 without the presence of a lawyer. 10. The second applicant was advised by her then legal representatives that she had no grounds for appealing against her conviction and accordingly did not do so within the statutory time-limit. However, it appears that, in September 2008 and again in January and February 2009, she was granted extensions of time in which to lodge a Note of Appeal, but failed to do so. 11. On 15 November 2010, on the basis of advice from new legal representatives, the second applicant lodged an application for extension of time in which to lodge an appeal against conviction. The application and an accompanying devolution minute alleged inter alia that the second applicant’s trial had been unfair as a result of the admission of the statements she had given in her police interview. 12. The application was refused by a Single Judge on 26 November 2010. The second applicant appealed against that decision and a hearing was convened before three judges of the Appeal Court on 16 December 2010. Before the hearing senior counsel advised the second applicant that none of her grounds of appeal were arguable: in particular, he advised that the Supreme Court’s finding in Cadder that its ruling should not apply to “closed cases” (see paragraph 17 below) meant that the second applicant’s ground of appeal relating to the admission of her statements to the police could not succeed. Consequently, at the hearing on 16 December, the second applicant sought to withdraw her application for an extension of time. The Appeal Court allowed the application to be withdrawn on the same date. 13. At the time of the above judgment (and the time of the present applicants’ 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. 14. 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, judgment of 22 October 2009. The Appeal Court considered that it was not necessary to give effect to the Salduz judgment in Scotland, finding instead 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. 15. Peter Cadder was detained in May 2007 following an incident in which two men had been attacked by a group of youths. He was taken to a police station and interviewed, under caution but without the presence of a lawyer, by two police officers. During the interview he made a number of admissions with regard to the offences with which he was later charged. He was then arrested, cautioned and charged with assault and breach of the peace. At trial the audio tape recording of his police interview was played in full to the jury and they were given copies of the transcript. On 29 May 2009 he was convicted on all charges. He appealed against conviction inter alia on the ground that his interview had been relied on at trial. His appeals to the Appeal Court were refused on the papers at the first and second sift stages. He then submitted an application for special leave to appeal to the Supreme Court. 16. On 26 October 2010 the Supreme Court unanimously found that: (i) McLean had been incorrectly decided by the Appeal Court; (ii) Cadder’s case should be remitted to the Appeal Court for further consideration; (iii) and its ruling should not apply retroactively. 17. On the third issue, both Lord Hope and Lord Rodger (with whom the other Justices agreed) held that, in the interests of legal certainty, the ruling should not permit the re-opening of closed cases, but rather only apply to cases which had not yet gone to trial, to cases where the trial was still in progress and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission. 18. Immediately after the Cadder ruling, the above Act (“the 2010 Act) was passed by the Scottish Parliament. It amends the Criminal Procedure (Scotland) Act 1995 to allow a suspect the right to have intimation sent to a solicitor inter alia that the solicitor’s professional assistance is required by the suspect. It also provides for the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning. Consultation includes, for example, consultation by means of telephone. The 2010 Act also provides that a suspect must be informed of these rights. 19. The Scottish Criminal Cases Review Commission is a public body with the task of reviewing and investigating cases where it is alleged a miscarriage of justice has occurred. The 2010 Act amends the provisions of the 1995 Act which give the Commission the power to refer cases to the Appeal Court. The 2010 Act directs the Commission, in determining whether or not it is in the interests of justice that a reference should be made, to have regard to the need for finality and certainty in the determination of criminal proceedings. The 2010 Act also gives the Appeal Court the power to reject a case which has been referred to it by the Commission if the court considers that it is not in the interests of justice that any appeal arising from the reference should proceed. The Act provides that, in determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the Appeal Court must have regard to the need for finality and certainty in the determination of criminal proceedings.