Admissibility & The Lack of Legal Counsel, A Comparative Perspective: Her Majesty’s Advocate v P (Scotland) [UKSC]

In early October the Supreme Court of the United Kingdom [‘UKSC’] was asked to determine whether evidence with an independent life of its own, obtained from an individual without a lawyer, is admissible in light of the respective guarantees to a fair trial and to legal advice in Articles 6(1) and 6(3) of the European Convention on Human Rights [‘ECHR’]. In their 2010 decision Cadder v HM Advocate [‘Cadder’], the UKSC affirmed the decision of the European Court of Human Rights [‘ECtHR’] in Salduz v Turkey, ruling that admissions obtained from an accused without access to a lawyer during police questioning at a police station were inadmissible, being contrary to the guarantee to “legal assistance” in Article 6(3)(c) of the ECHR. On reference from the High Court of Justiciary, the Court determined in Her Majesty’s Advocate v P (Scotland) [‘P (Scotland)’] that such evidence is admissible and not contrary to the respective Articles, though obtained from a detainee without access to a lawyer, so long as it has an “independent life of its own.” The decision is significant both in terms of the substantive evidentiary issue the case concerned, as well as for what it says about the usage of comparative jurisprudence.

Facts & Law

The accused, P, had been charged with assault and rape and was detained by police for interrogation. At the police station, P told police he had had an adverse reaction to a powdered substance on the night of the alleged sexual assault, and that a friend could confirm this. The accused was not given access to legal advice prior to or during the interview. Following up on P’s alibi, the police spoke to the friend, who confirmed P’s story, but also mentioned a conversation he had with P the following morning in which P described meeting a woman the previous night and having consensual sex with her.

The accused, relying on Cadder, argued that his rights under Article 6(3) would be contravened if the Crown were allowed to introduce the evidence from his friend as it was obtained, in this case, as a direct result of the counsel-less interrogation.

The relevant portions of Article 6 of the ECHR read as follows:

Right to a fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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(3) Everyone charged with a criminal offence has the following minimum rights:

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(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

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As noted above, Article 6(3)(c) has been interpreted to make admissions obtained from detainees without access to legal counsel inadmissible.

Holding

Affirming the ECtHR’s holding from Gafgen v Germany, the UKSC accepted that the Salduz principle extends beyond mere admissions made without access to legal advice. Nonetheless, noting the dominant principle in Scot’s law, the court held that the mere irregularity in the method in which the evidence was obtained did not make it inherently inadmissible. Ultimately, ruled the Court, the test is whether it would be fair to admit the evidence.

Arguing that, even post Gafgen, the exact scope of the exclusionary rule is unclear, the UKSC cited the law of England and Wales as well as Canadian jurisprudence to find the evidence admissible. Citing the Canadian case, Thomson Newspapers Ltd v Canada (Director of Investigation and Research)  [‘Thomson Newspapers’], the UKSC accepted the Supreme Court of Canada’s [‘SCC’] distinction in that case between evidence that would not have existed independently of the exercise of power to compel it and evidence derived from compelled testimony which would exist independently of the compelled testimony.

As such, the UKSC held 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 (3)(c) [of the ECHR].” The determinative factor in the case was that the evidence of P’s friend had an “independent life of its own.”

Analysis

P (Scotland) is noteworthy on a number of levels. First, the actual evidentiary issue at the forefront of the case is interesting, and has comparative relevance for most constitutional democracies. In this regard, the Court’s holding makes sense, notwithstanding conceptual problems regarding what constitutes an “independent life of its own.” On the facts of P (Scotland), it seems apparent that the police could have been reasonably expected to uncover the friend’s information in the course of their investigation; the evidence was not entirely contingent upon the interrogation of P. As such, we can be reasonably comfortable characterizing it as having a life of its own. Like all legal buzzwords (think “reasonable,” or “meaningful”), however, future cases may well turn on what constitutes an “independent life” given the specific facts of the case.

Second, and related, the comparative dimensions of the case are discussion-worthy. On the one hand, the interplay between the quasi-constitutional ECHR and Scots law as well as the references to other legal systems (namely Canadian and American, but also English and Welsh) speaks to the increasingly intertwined and globalized nature of constitutional law, at least in the Western world. The consideration and usage of foreign jurisprudence should be encouraged as, particularly in the case of Constitutional democratic states, it allows Courts to leverage the expertise and experiences of other justice systems. Conversely, references to other constitutional systems may be fraught with danger given that a country’s constitutional jurisprudence on a given matter will not exist within a vacuum, but in relation to its other constitutional protections. In this case, while Thomson Newspapers was accurately understood and applied by the UKSC, it cannot account for the reality that the Thomson Newspapers decision exists within the greater context of our ss. 1, 10(b), 11(d) and 24 jurisprudence. Divorcing the holding of the SCC in Thomson Newspapers from this reality – specifically, that police in Canada would have to provide an accused with the opportunity to access counsel upon detention pursuant to 10(b), whereas police in the UK are evidently not so obliged – evidences some of the limits of relying on comparative jurisprudence.