Be Careful at the Football – the New Offensive Behaviour etc Act is in Force

 

This weekend sees the first outing for the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The Scottish Executive has been publicising the changes, and a press release on 29^th February was issued to remind us all of the new Act.

Some extracts from the release are below in bold, with my comments in plain text.

The Act will come into force on March 1 to stamp out offensive and religious hatred at football. 

The long title to the Act is – “An Act of the Scottish Parliament to create offences concerning offensive behaviour in relation to certain football matches, and concerning the communication of certain threatening material.”

That differs from the stated focus of the Act as per the press release, as it is a wider range.

In addition, according to the release, the Act will stamp out offensive hatred and religious hatred at football. I am not sure if there is “inoffensive” hatred. And the Act extends far further than “religion”.

Indeed as I have said before, “religion” is not the problem, unless support, especially for Rangers and Celtic, is seen as “religious”.

It is good to see that the aim is high – stamping out hatred. Is “hatred” now illegal?

The legislation responded to calls from Scotland’s police and prosecutors and gives them additional tools to crack down on sectarian songs and abuse at and around football matches and threats posted on the internet or through the mail.  

Graeme Pearson, MSP, is a former police officer, latterly head of the Scottish Drug Enforcement Agency. In the Committee stages of the Bill, he pointed out that the police would never decline greater powers. The same applies to prosecutors.

Is the position of the present Executive that the police and prosecutors will be given whatever powers they seek? Is the default position that, if the police and prosecutors ask for something, it is, by definition, necessary?

This is even more of a concern where the Crown Office, which is in charge of the Scottish prosecutorial system, is in the hands of career prosecutors. The present Lord Advocate, Frank Mulholland, and his predecessor, Dame Elish Angiolini, were both career prosecutors, working their way up through the ranks of procurators fiscal.

This trend (if two example can be considered a trend) is a change from the practice from before, stretching back hundreds of years. The Lord Advocate was appointed from the Scottish Bar, and whilst they would have had experience in Crown Office as a prosecutor, they would also have had a broader practice. They were independent of Crown Office, whilst heading it up.

As the great CLR James wrote in his book “Beyond a Boundary”, “What do they know of cricket, who only cricket know?”

What do they know of prosecution who only prosecution know?

The present and immediate past Lord Advocates are not unqualified for the role. However, the fact that they have had no experience elsewhere ought to have rendered them disqualified for the post.

The release also states that the new rules were needed as “additional tools” but surely the existing tools were sufficient?

This week has seen the imprisonment of David Craig for 14 months after admitting behaving in a threatening or abusive manner likely to cause fear and alarm by posting images and messages of an offensive, threatening and sectarian nature. He was dealt with under the “old” law.

Supt David Brand, head of the Football Coordination Unit Scotland, said: “On the day that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has come into force, this sends a strong warning to others who might think about posting such vile, abusive and threatening comments on Facebook, Twitter or indeed any other online site.”

I know that Supt Brand is a dedicated and excellent police officer. However, his statement seems to miss the point. Mr Craig is in prison as a result of the “old” law. That was sufficient to allow him to be prosecuted and imprisoned. The new Act makes no difference to that.

There have been regular reports of people being arrested for “offensive chanting”.

Where are the “criminals” who could not be prosecuted because of the new law not being yet in force?

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Day 7 (Tuesday) – The Rangers (In Administration) Saga Continues – Conflicts of Interest and the Right Against Self-Incrimination

I have not had the chance to keep up with the administrators’ statements from Ibrox over the last couple of days, so this is my chance. As before, the original statements are in bold, with my comments below in plain text. This is Tuesday’s.

DUFF and Phelps, Administrators of Rangers Football Club, today (Tuesday 21^st February) issued the following statement.

David Whitehouse, joint administrator, said: “Since being appointed administrators last week there has been widespread concern raised with us, not least by Rangers supporters and season ticket holders, about the agreement between the Club and Ticketus.

“Following information received, it is now apparent that the proceeds from the Ticketus arrangements amounted initially to a sum in the region of £20 million plus VAT. Subsequently, £18 million was transferred to the Lloyds Banking Group.

Was the information, as was suggested over the weekend, from Collyer Bristow? Or was it from Mr Whyte, who was described by the administrators as “co-operating” with them. Not so much as to tell them where the Ticketus money was, it would appear!

The apparent role of Collyer Bristow is worthy of attention, I feel. Before I start, I am sure that they have fulfilled all of their obligations and duties regarding client identification, checking of sources of funds and conflicts of interest, but there are some issues that, to a lay observer, might seem worthy of note.

The administrators had suggested they were getting information from “Rangers’ former lawyers”. Gary Withey, a partner in Collyer Bristow, is Company Secretary to Rangers Football Club PLC (in administration). He personally, and his firm, have been acting for Rangers, as I will refer to the PLC. For example, he was the person who, on Rangers’ behalf, sent a formal complaint about Messrs Levy & MacRae to the Scottish Legal Complaints Commission, alleging that L&M were themselves acting in a conflict situation. This complaint was made despite L&M having produced clear expert opinion that its behaviour was entirely appropriate, and that information not having been passed by Mr Withey to the SLCC.

In addition, it is understood that Mr Withey was responsible for the choice of Edinburgh lawyer for Rangers in the Martin Bain case, the original choice, as it turned out, not being up to the high-powered team assembled by Peter Watson of L&M for Mr Bain.

As well as acting for Rangers, Collyer Bristow act, as far as has been made known, for Rangers FC Group Ltd. That company, referred to as Group, has its Registered Office at Collyer Bristow’s address.

Collyer Bristow may act personally for Mr Whyte and for his Liberty Capital Ltd company.

As the suggestion re Ticketus is that season tickets belonging to Rangers were sold off by Mr Whyte, with the proceeds going to Group to settle the Lloyds Bank debt, does this not, I have been asked, present a potential conflict?

If one company on a group transfers assets to another, then the paper trail has to be transparent. It is not for directors to shift funds and assets around without good cause and proper records. After all, the directors run the company in the interests of the shareholders.

What legal advice did Mr Whyte, who assured us he had such “high-powered” assistance, receive regarding the Ticketus deal? Was this provided by Collyer Bristow, and if so, to whom?

Might they have advised Mr Whyte in each capacity?

If indeed Mr Whyte/Rangers/Group was advised by Collyer Bristow on this point, was that advice followed?

The New “Offensive Behaviour at Football” Act Comes Into Force on 1st March – Oh Dear

The Act has now received the Royal Assent. The Scottish Executive has indicated that it will lay regulations before the Scottish Parliament to bring it into force on 1^st March.

The first raft of fixtures after that date takes place on 3^rd March, when Celtic travel to Aberdeen, Rangers entertain Hearts, and some other games are played which will not be subjected to the scrutiny of those two.

The Scottish Executive website publicised this yesterday here.

I have planned a couple of pieces looking in depth at the Act and what I think is wrong with it, but I thought a few comments were relevant now.

The first thing I would say refers to the subtitle on the Scottish Executive news headline page – Approval for important new religious hatred legislation. (Emphasis added)

The focus in the debates on the Bill, both in Committee and in Parliament, was on the various different types of “hatred” which were to be stamped out. The “cancer” as Alex Salmond called it, of “sectarianism” was to be rooted out.

However, the point which politicians miss, either deliberately or accidentally, is that “religion” is not really the root of these problems, I think – unless one is going to treat Rangers and Celtic as religions (and interestingly a wise man pointed out to me this week that, as far as matters of orthodoxy, heresy and schism are concerned, there are certain similarities between religions and the following of football teams).

There is no doubt that there is “religious hatred” in Scotland. However the lazy assumption which appears to be made by politicians is that Celtic = Roman Catholic and Rangers = Church of Scotland.

I accept that, amongst the fans who bellow insults at each other at Old Firm matches, there might be an assumption (notice I did not use a capital letter) that the fans in opposing colours represent the “opposing” faith.

The famous, though probably apocryphal, story about Bertie Peacock, the Celtic player from the 1950’s, illustrates the point. During a Celtic v Rangers game, he is said to have complained to a teammate that the opposing fans were calling him a “Fenian b@%&#+d”. When re-assured that the other players got that all the time, Mr Peacock, a proud Ulsterman and not a Roman Catholic, is believed to have said “Aye! But you all are!”

I imagine that similar conversations, from the other side of the divide might have taken place involving some of Rangers’ recent foreign players who have been adherents to Roman Catholicism.

The focus of the various pieces of legislation regarding “hate speech” (an Orwellian phrase if ever there was one) is on the view of the offender. So, if someone had shouted and sworn at Pope Benedict on his visit to Scotland, and told him that “I hate all you @&%$£#* followers of Shinto!” Then this would have been libelled as an aggravated breach of the peace, even although, as is well known, the Pope is a Catholic.

Whilst it might be expecting too much to think that the fans whose main pleasure at games seems to be to bait the opposition would appreciate that football teams and religious belief are not synonymous, then surely the politicians are wise enough to see past that? Sadly not.

Minister for Community Safety and Legal Affairs, Roseanna Cunningham made the following comments, with my observations below each paragraph:

 

“These new laws will give Scotland’s police and prosecutors the additional tools they have asked for to extract poisonous songs of hatred from Scottish football and threats of harm being posted on the internet.”

First of all, as Graeme Pearson, MSP, said in the Committee stages of the Bill, the police have never been known to turn down new powers. Mr Pearson would know, having served with distinction as a police officer for 38 years, ending his career as Director General of the Scottish Crime and Drug Enforcement Agency, before turning to politics.

Ms Cunningham seems to be taking the view that, if the police and prosecutors want new powers, then they shall have them. That is surely a dangerous position. I intend no criticism of the present Lord Advocate, Frank Mulholland, nor of his immediate predecessor, but (and this is a point to be expanded upon in another piece) the fact that both of them are life-long prosecutors necessarily means that their views will have been impacted by the prosecutorial work they have done. Prior to the appointment of Eilish Angiolini as Lord Advocate, the appointment was usually politically based, but the job went to an experienced Advocate, who had the breadth of experience to come to the Crown Office with a view, in theory, from above the prosecution v defence fray.

As a headline, “Prosecutors and police want more powers” is up there alongside “Dog bites man”!

Ms Cunningham then states that the Act will be used “to extract poisonous songs of hatred from Scottish football”. The summary at the bottom of the press notice I have referred to above indicates of course that the new offence is far wider than simply “poisonous songs of hatred”.

I have, as may not surprise my reader, a great deal to say about the precise offences created under the Act.

However, the existing law of breach of the peace covered these matters exactly, which was one of the beauties of that offence as it had evolved. But even more so, the Criminal Justice and Licensing (Scotland) Act 2010 introduced a statutory offence of “threatening or abusive behaviour” in section 38.

As was repeatedly pointed out in the debates re the Bill, there had been no time to assess whether the creation of this new offence had been successful in clamping down on such conduct.

Usually it is the critics of legislation who are accused of coming up with ever more convoluted scenarios to show its ineffectiveness. Here though, the Minister and the Lord Advocate were the ones presenting the pretzel-contorted situations where neither s38 nor breach of the peace would apply.

In addition, despite the fact that the “Threatening Communications” part of the Act is not exclusively football-related, the fact that the Minister lumps both parts together, and that the Executive webpage re this story is illustrated with a football, seems to be saying, incorrectly, that it is.

And as far as the “Threatening Behaviour” part of the new Act goes, I find it hard to see how something might be caught by the new rules, but would have been legal under s38, for example.

 

“The passing of this Act sends out an important message about the kind of Scotland we want to live in and tells the bigots in no uncertain terms that this behaviour will not be tolerated in a modern Scotland.”

This sentence is the key, I think, to the whole matter. A message is being sent out. As the saying goes, “Something must be done, therefore we are doing something.” It is proper for legislation to be used to “send a message”. The court system does so every day. I recall the late and greatly missed Sheriff Fitzsimons at Dumbarton regularly telling a person in the dock that a message needed to go out. This, I am sure, was his cue to make sure that the reporter from the local paper made a careful note, and that the front-page story for the next edition was on its way!

But the problem is that, the more precisely offences are defined, the more risk there is for confusion in the minds of judges, and much more likely, juries. We simply need to recall how, apparently due to the, in my view, unnecessary addition of a religious aggravation to the charge of assaulting Neil Lennon, Mr John Wilson found himself acquitted of an assault carried out on live TV!

Already supporters of each side of the divide pore over law reports to find which word has been criminalised. The danger is that, should there be a high profile case under the new Act, and at least at first all such cases will be high profile, then a decision made on the facts of the case regarding a particular word, phrase, chant or song will be treated, by media, police and opposing fans, as having set a cast-iron precedent.

In the case of William Walls v PF Kilmarnock, Donald Findlay QC attempted to argue that Mr Walls’ references to “Fenian  b@%&#+ds” at a Kilmarnock v Rangers match (!) was a political comment. As Lord Carloway put it, “The Court does not accept that the appellant was referring to members of the American brotherhood formed in the 1850s.”

No one wants bigots, but, in a free society, how far should the State go in preventing people being “offended”? That debate seemed to be ignored in the rush to “do something”.

 

“By all means enjoy the banter and passionate support for your football teams, even passionate opposition of other football teams – it is the lifeblood of football. But sectarianism and other expressions of hate are not acceptable and it is time for it to stop. Those engaging in it will face the full force of the law.”

In the Walls case referred to, Lord Carloway made similar comments. He said, “The Court has no doubt that the conduct of the appellant did amount to a breach of the peace, even in the context of a football match where at least shouting and singing, or hearing shouting and singing, are undoubtedly part of the match experience expected by all attending the stadium. As a generality, a complaint of someone shouting and singing could not ground a complaint of breach of the peace at a football match, as it might at other locations. Equally, occasional standing up and even leading communal singing are unlikely to amount to conduct severe enough to threaten serious disturbance. However, presence inside a football stadium does not give a spectator a free hand to behave as he pleases. There are limits and the appellant’s conduct went well beyond those limits.”(Emphasis added)

This case was an example of the sensible approach of the judiciary to these matters, even before s38 came into force. The more prescriptive the rules, the less discretion open to the courts.

In addition, the strict line taken by Crown Office on matters of this nature, including the insistence on going to trial and not accepting lesser pleas, means that there will undoubtedly be wasted court time, and unnecessary costs caused by prosecutions which, as Sheriff Cusine recently pointed out on stepping down from the Bench, should never have been initiated at all.

Finally, the timing of the introduction of the Act is interesting. In Committee last year, there was an initial effort to rush the Bill through in time for the start of the football season. As the Minister put it, the Act needed to be in place in time for the police to be trained in how to deal with it, and so that there was no confusion for police and for the fans caused by the law changing mid season. This necessity of course could only apply to the Offensive Behaviour part of the Act, as the Threatening Communications part is not exclusive to football.

Here we have situation where the new Act comes into force mid season, and therefore one would expect there to be a different attitude from the police and prosecuting authorities – after all, the existing law was repeatedly stated to have been inadequate.

The Lord Advocate published his draft guidance in connection with the Bill, as it was proceeding through Parliament. Ironically, this, together with police guidance to its officers, will be more important in what can, and cannot, be done by football fans, than the Act itself, and the guidance was not subject to debate.

I foresee many cases coming under the new Act, and a clear conflict arising in relation to the rights of free speech enshrined in the European Convention on Human Rights as opposed to the restrictions envisaged in the Act and the guidance.

As the guidance puts it:-

“The offence WILL NOT

 Criminalise singing national anthems in the absence of any other aggravating, threatening or offensive behaviour

 Criminalise making religious gestures in the absence of any other aggravating, threatening or offensive behaviour

 Criminalise football banter or bad taste in the absence of any other aggravating, threatening or offensive behaviour

Officers should have regard to proportionality, legitimate football rivalry and common sense when assessing whether the conduct would cause offence to the reasonable person.”

Therefore, singing national anthems, making religious gestures and “banter and bad taste” can be offences if there is other “aggravating, threatening or offensive” behaviour. The Minister referred in Committee to people “aggressively making the Sign of the Cross.”

On that basis, if a police officer, and then a fiscal, have the same view as Roseanna Cunningham of such an event, an accused would be tried for breach of the new Act.

In addition, as the Lord Advocate’s guidelines state, “Where there is evidence that an offence has been committed the accused should be reported in custody. Only in extenuating circumstances should an accused be liberated subject to an undertaking to appear at court.”

I suspect that the cells might find themselves rather full on 25^th March, after the Rangers v Celtic game that day.

And, as we have seen with the Twitter Joke case, a prosecution for what most people saw as a joke has resulted in a criminal conviction, and loss of employment, for the accused.

I fear that the Scottish justice system faces appearing ridiculous very soon.

John Wilson – 8 Months For Not Assaulting Neil Lennon – Why It’s Fair That He Is Now Free

John Wilson, convicted by a jury of breach of the peace at the Hearts v Celtic match in May, and controversially acquitted of the charge of assaulting Neil Lennon, appeared at Edinburgh Sheriff Court today for sentencing.

Sheriff Fiona Reith, who had presided at the trial, passed a sentence of 8 months imprisonment, backdated to the date of his first court appearance on 12th May. Mr Wilson has spent all that time in custody, not having been granted bail, and therefore under the rule whereby a convicted person is released after serving one half of a “short” sentence, as this is, he will now be a free man.

Sheriff Reith’s sentencing statement is carried in full on the excellent Scottish Judiciary website. The link is here.

The Sheriff noted the terms of the charge of which Mr Wilson had been convicted, namely that “On 11 May 2011 at Tynecastle Football Stadium, Edinburgh, you John Clark Wilson did conduct yourself in a disorderly manner, run onto the field of play during the period of a designated sporting event, run at the away team dug out, shout, swear, all to the alarm and annoyance of others and thereby causing further disturbance within the crowd there and commit a breach of peace”.

The charge of which he was acquitted and the alleged religious aggravation which was removed by the jury from the breach of the peace charge are irrelevant to the Sheriff’s decision on sentence.

Sheriff Reith referred to the “poisonous” atmosphere at the match, as spoken to by witnesses, and described the evidence of one of the police officers who feared a pitch invasion following Mr Wilson’s actions.

The Sheriff stated “A breach of the peace can sometimes be a quite minor crime but sometimes it is not.  In this case it was not minor at all; it was serious, and with serious potential consequences in the context of what was already a highly volatile atmosphere in the crowd of over 16,000 football supporters.”

After commenting favourably on the Social Work reports regarding Mr Wilson, and noting his remorse which she took as genuine, she went on to say “However, in all the circumstances, I take the view that the nature and gravity of the offence is such that no disposal other than custody would be appropriate in relation to this offence.  It has to be clearly understood by you and others that this sort of behaviour will not be tolerated and will be punished, and punished firmly, by the courts.” (Emphasis added)

She noted that the early offer to plead guilty to the charge of which he was convicted (and indeed it is understood that Mr Wilson offered to plead guilty to both charges but without the religious aggravation on either) meant that she discounted what would have been a 12 month sentence to an 8 month sentence.

In addition a Football Banning Order was issued against Mr Wilson, a power which had been noted recently, was being little used by the courts.

Is it coincidence that the sentence imposed happens to mean that Mr Wilson is now released? I am sure that played no part in the Sheriff’s decision.

However it would be hoped that the clear comments made by Sheriff Reith, as highlighted above, and the fact that, at the top line, Mr Wilson would have received a 12 month sentence for breach of the peace if not for his early plea offer, will allay concerns that had been expressed that in some way, the jury’s verdict made it “open season” for people to try to emulate Mr Wilson.

Anyone at a football match who is thinking about encroaching from the spectating area with aggressive intent, whether with or without religious, racial or other aggravating features, is looking at a custodial sentence in future, I suspect, if they allow their exuberance to get the better of them.

I am sure that there will still be disquiet about the jury’s verdict here and the rules preventing discussion with jurors preclude us from knowing why they decided what they did.

I am equally sure that some people will express anger that Mr Wilson has now “walked free” even though he has been in custody for the last four months, and has had his picture shown in the media across the nation. This seems to be a very fair sentence passed by an experienced and wise Sheriff, who had the advantage of hearing all the evidence in court.

Indeed whilst drafting this post, I have already seen tweets commenting on how ridiculous it is that Mr Wilson is free now. As I thought these seem to miss the point that he has been in prison since mid May.

It is of course open to the defence to appeal if they consider that the sentence was unduly severe. I am sure that they would not do so.

The Crown could appeal on the basis that the sentence was unduly lenient. In light of the public statement by the Lord Advocate regarding the case, prior to sentencing, one wonders if the Crown might consider this, on the basis that the High Court would then get to have their say and effectively set the bar for these offences.

I should say that, as far as I can see, the sentence is perfectly fair and I would be surprised if (a) there was any appeal and (b) if the High Court made any change to the sentence.

If Mr Wilson had been convicted of assault or had had the religious aggravation added, then it is clear that his sentence would have been harsher. The Sheriff has done the justice system a service, I feel, by doing her job of considering all the relevant matters, disregarding the irrelevant, and pronouncing a fair disposal.

I suspect that there might be many though who will disagree!

Cadder II – The Sequel – PF Glasgow v Akram – Article 6 Revisited

 

Cadder v Her Majesty’s Advocate

 

The Cadder case (Cadder v HMA [2010] UKSC 43) created havoc last year when the United Kingdom Supreme Court (UKSC) declared that the long standing practice of the Scottish police of detaining suspects and questioning them without the accused having had the benefit of legal advice under s 14 of the Criminal Procedure (Scotland) Act 1995 breached the rights of the accused to a fair trial under the European Convention on Human Rights (ECHR). This meant that where a suspect had been detained by the police and questioned without access to legal advice, then in the absence of any waiver by the accused, any matters mentioned in the interview would not be admissible against him in a trial.

The Scottish Parliament passed emergency legislation – the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act. This Act was designed to close the loophole identified by the UKSC, which in turn arose from the decision of the European Court of Human Rights in Salduz v Turkey (2009) 49 EHRR 19. The case also prompted significant criticism by the SNP administration of the UKSC’s “interference” in Scottish criminal law.

Fears that the Appeal Court in Edinburgh would be swamped by huge numbers of appeals, and that numerous cases would have to be dropped have proved to be exaggerated, but it is clear that the decision in Cadder has had an enormous effect upon the criminal justice system in Scotland.

The new system put in place has been bedding in, and the UKSC has a representative sample of cases with decisions pending to clarify the effect of the Cadder decisions in cases prior to the new legislation.

All seemed to be calm, at least relatively.

 

PF Glasgow v Akram

 

However, on 1^st September 2011, Sheriff Sean Murphy QC (who also sits as a temporary High Court judge) put the “Cadder” among the pigeons again.

His decision was issued in the case of PF Glasgow v Akram which is at this point unreported, but can be found here  Sheriff Murphy’s decision applies the Cadder principles to a much larger variety of cases than Cadder itself, and has potential implications across the UK.

Mrs Akram was charged on summary complaint with two counts under Section 111(1A) of the Social Security Administration Act 1992, as amended, by knowingly failing to give prompt notification in the prescribed manner to the relevant authorities of changes in her circumstances as a result of which she was said to have obtained income support and housing benefit to which she was not entitled.

Her solicitors lodged a Devolution Minute arguing that her right to a fair trial, under Article 6 of the ECHR, had been denied because the prosecution proceeded on the basis of certain replies, contrary to her interests, which were made by her in an interview which took place without her having the benefit of legal assistance.

Mrs Akram had not been detained under s14. Instead she had been interviewed by one officer of the Department for Work and Pensions and one from Glasgow City Council at the same time. She had attended the interview, which was in connection with alleged fraudulent activity on her part, on a voluntary basis, and it was accepted that she had been told that she was free to leave at any time. The compulsion element under s14 was therefore not present in respect of this matter.

She was advised that she could have legal advice but it was noted that she had not sought this prior to the interview, nor had she asked to leave the interview to obtain it.

 

Submissions to the Court

 

Mr McLaughlin, solicitor for Mrs Akram, referred to the cases of Salduz, Panovits v Cyprus and Cadder. He drew the principle that the suspect had the right to access to legal advice from the first stages of interrogation by the police in order to ensure that his/her right against self-incrimination was meaningful.  He argued that the Interview of someone suspected of fraudulent activity by a non-police agency fell to be treated in the same way.  There were no reported cases at present on the question of the Cadder principle as applied to such non-police agencies.

The case of Jude, Hodgson & Birnie v HMA [2011] Scot HC HCJAC 46 was relevant in connection with the question of waiver of the right to legal advice, it was submitted. The court had accepted that the Cadder rights to legal advice could be waived, but as per the Jude etc case there was no valid waiver for two reasons “namely (i) because the law at the time did not allow the accused to have access to a lawyer at that stage of pre-trial procedure; and (ii) because the appellant’s consent to be interviewed in each case was not informed by legal advice.” Whilst Mrs Akram was allowed access to a lawyer, she had not had her consent to be interviewed informed by legal advice.

Mr McLaughlin argued that Mrs Akram had not been acting with the benefit of legal advice which she ought to have been given.  Her interview therefore was inadmissible.  There had been no voluntary, knowing and intelligent relinquishment of her right, which had to be established in an unequivocal manner, with minimum guarantees commensurate to its importance.  The principle set out in Jude etc applied to all cases.  There should be consistency rather than one rule for interviews conducted by the police and another for interviews conducted by other agencies.

The procurator fiscal depute sought to distinguish all the authorities cited for Mrs Akram. They all related, she said, to police interviews. Police interviews had a compulsion element absent in non-police agency interviews. The two were not comparable. In any event, Mrs Akram was not a vulnerable person, being an adult who had had the right to legal advice made clear to her. She had chosen, under no pressure, not to seek legal advice and therefore she had waived any Article 6 rights in this regard.

 

Sheriff Murphy’s Determination – Does the Cadder Principle Apply to Non-Police Agency Interviews?

 

Sheriff Murphy proceeded to deal with the two issues in the case. First of all, did the Cadder principle apply to non-police agency interviews and secondly, had there been a valid waiver of her rights by Mrs Akram?

The first point seems to be the principle with potentially wide applications, although, as we shall see, these might be mitigated significantly by virtue of the decision on the second part.

Dealing with the Cadder point, Sheriff Murphy stated that the “ratio of the decisions in the cases of Salduz v Turkey and Cadder v HMA is that a suspect’s right against self-incrimination would be compromised if he were denied access to legal advice before being questioned by the authorities in the form of the police.” He indicated that this was clearly indicated in Salduz and in the speeches by Lords Rodger and Hope in the Cadder case.

He went on to say “The principle itself is so clearly recognised in these passages that I can see no reason to distinguish between the police and any other agency which is questioning a person suspected of committing some type of crime.  In this context it is significant that the procurator fiscal depute in her submissions to me used the phrase “reporting agency” because that reflects the fact that the agencies involved in this case were used to reporting matters which they had investigated to the office of the procurator fiscal so that prosecutions might be undertaken.  Accordingly their enquiries must be seen as sharing some of the features of a police investigation and the right against self-incrimination must be as important in relation to any interview conducted by such an agency, where the contents of the interview are likely to be used in evidence, as it would be in the context of police questioning.  I can see no reason why the general principle should be restricted to police questioning after detention, as the respondent urges.  The principle must be applied equally to all enquiries which are likely to lead to criminal proceedings.” (Emphases added.)

The learned Sheriff did not go quite as far as to say that this was now trite law, but his analysis makes clear that the Cadder protection must apply in these matters. Where the agency involved can effectively bypass the police in reporting a matter to the Procurator Fiscal, then such an interview must be treated as if a police interview. One can self-incriminate in such a non-police agency interview as much as one can in a police interview, and in either case the prosecution would seek to use admissions made by the accused in such interviews in court. Logically therefore, the Sheriff viewed that the absence of compulsion was not the relevant factor here, but the purpose of the interview and the use to which admissions made therein might be put.

There are a large number of agencies which can be described as “reporting agencies” as used by the fiscal depute and the Sheriff. The wider issue is that these agencies are UK wide. Whereas s14 detention, as formerly applied, was only the law in Scotland, the issue of non-police “reporting agencies” conducting voluntary interviews under caution is a national one. Whilst the mechanism by which the ECHR is applied differs between Scotland and England (in Scotland under the Scotland Act and in England under the Human Rights Act) Article 6 protections apply across the board. It would therefore appear that the issue raised would be applicable across the border.

Of course the requirement for corroboration in Scotland, which is not replicated in England, makes this even more important in the latter jurisdiction. In Scotland, one cannot generally be convicted solely on one’s own admissions. In England, without that requirement for corroboration, admissions under caution could be enough, on their own, to result in a conviction.

With the UKSC having determined this principle, it would not be a surprise to see the specific issue addressed by Sheriff Murphy in this case being refereed to the UKSC for an authoritative determination.

Indeed it has already been suggested that, due to the cross border implications, the Advocate General for Scotland will seek to refer the matter to the UKSC.

Sheriff Murphy’s Determination – What is the Position Regarding Waiver?

 

Sheriff Murphy then spends longer dealing with the principle of waiver than with the basic Cadder rule. He quoted Lord Rodger in Cadder as saying:-

“It is, indeed, quite common for those who have been arrested to decide to make a voluntary statement to the police and not to exercise their right to obtain legal advice before doing so. See, for instance, the famous example in Manuel v HM Advocate 1958 JC 41. Similarly, if a suspect had a right to legal advice before being questioned, but declined to exercise it, a court might have to consider whether, having regard to all the circumstances, he had effectively waived his relevant article 6 Convention right so that no violation would arise.”(Emphasis added)

The learned Sheriff noted that it had repeatedly been made clear to Mrs Akram that she was entitled to have legal advice, both in the letter inviting her to attend at the interview, and during it as it proceeded. He said “I further consider that these excerpts show that she clearly and obviously declined to seek such advice at a time when it was open to her to do so, apparently at an early stage in the interview”.

He considered that it was clear that Mrs Akram had waived her right to legal advice.

The thornier question was whether this was “an informed decision, freely taken?”

Sheriff Murphy considered the case of Pishchalnikov v. Russia – 7025/04 [2009] ECHR 1357 (24 September 2009) where the court had determined that a suspect had the right to waive his rights in connection with access to legal advice. He quoted paragraph 78 of the decision which states:-

“However, the Court strongly indicates that additional safeguards are necessary when the accused asks for counsel because if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.” (Emphasis added by Sheriff Murphy)

In the present case Mrs Akram had specifically declined legal advice. This meant that the Pishchalnikov case fell to be distinguished as here the suspect had repeatedly asked for a lawyer, but been refused, prior to making a confession.

The Sheriff then considered the “circular” argument proposed by Mr McLaughlin for Mrs Akram to the effect that, in the absence of legal advice, a suspect could not make a valid waiver of their rights, as they did not know and understand what those rights were.

Here he considered the Jude case referred to above.  He noted that that case was decided based on the rules in place prior to the Cadder decision and the 201 Act being passed. At the time there was no right recognised to have legal advice prior to an interview by the police, so accordingly the police did not advise suspects of what ultimately, as per the UKSC in Cadder, turned out to be the correct position, namely that there was such a right.

In such a case there could only be an implied waiver, as no one could expressly waive a right not known to them.

He went on to say:-

“The situation in the cases of Jude & Ors is rather different from Mrs Parveen Akram’s position.  She was expressly advised of her right to seek legal advice and she chose not to exercise it.  She was expressly advised that the interview would be suspended on her indicating that she wished to seek legal advice but she declined to do so.  That was an informed decision on her part because she was plainly aware of the existence of the right and she did not seek to exercise it.  I therefore consider that she must be held to have waived her right to seek legal advice prior to and during the interview of 9 December 2008.” (Emphases added)

He then decided that (a) the Cadder rights were applicable, but that (b) Mrs Akram had waived them and therefore her alleged admissions were admissible and the case should proceed.

We now wait to see if this case will be appealed to the High Court.

 

Implications

 

Where does this take us?

Firstly, I imagine that, whether with this prosecution or another, there will be a case determined by the Appeal Court in Scotland or indeed the UKSC in an effort to determine this point. Are non-police agencies bound by Cadder rules? On the basis of Sheriff Murphy’s analysis, which of course is persuasive, but not binding, there is little doubt that such rules do apply. Agencies such as the Department of Work and Pensions, local authorities in connection with various functions, Her Majesty’s Revenue & Customs and many more would fall within that description. All sorts of cases, such as those relating to breaches of the benefit rules, tax evasion, environmental heath infractions, planning offences and violations of the rules of Company law or Bankruptcy, where the investigations are carried out not by police, but by a “reporting agency” would appear to be covered. On that basis, and therefore across the UK, will there turn out to be many cases where prosecutions need to be dropped or convictions quashed? I must for now leave that question open.

 

Secondly, what are the implications for Legal Aid, both in Scotland and elsewhere in the UK? Under the new post-Cadder legislation in Scotland the Scottish Legal Aid Board (SLAB) set up a much criticised scheme for providing people who are detained for questioning by the police to receive free legal advice from a police station duty solicitor, being an extension of the existing Duty Solicitor scheme. A spokesman for SLAB is quoted by the Herald as saying that assistance was available to those questioned by outside agencies but would be considered on an individual basis. After all the disputes between the solicitors who practise criminal law in Scotland and SLAB over the new police station duty advice, I am sure the last thing SLAB want is to have to extend this in some way to cover interviews with other agencies. For one thing, SLAB’s budget is sorely pressed just now, they tell us, and a new layer of “Duty Solicitor” activity would result in resources being taken from elsewhere in their budget. But following Sheriff Murphy’s principle, if a police interview and that with a non-police “reporting agency” are so similar as to require Cadder protection in each case to render them ECHR compliant, can the Scottish Government justify not extending the free “Duty” legal advice to “reporting agency” interviews?

As the arrangements for Legal Aid in England are not something of which I have much, if indeed any, knowledge, I leave to wiser people than me if there would be Legal Aid implications outwith the Scottish jurisdiction.

 

Thirdly, is the waiver decision reached by Sheriff Murphy a “get out of jail free” card for the prosecution, reducing the impact of the Cadder principle in practice?

The situation where there is police detention involves the suspect, often without any warning, being apprehended. There is no opportunity to take legal advice prior to interview and a suspect cannot opt to leave the police station to seek such advice. The new post-Cadder regime in Scotland allows the suspect to seek and obtain such advice, even if over the telephone, prior to interview unless the right is waived.

However in most “reporting agency” cases, the suspect would attend, as did Mrs Akram, on a voluntary basis. The practice of the DWP, as I understand it, when investigating an allegation of a fraudulent benefit claim is, at the appropriate moment in the inquiry, to invite the suspect to attend. The letter doing so makes clear that the suspect has the right to seek legal advice prior to the interview. As was seen in the Akram case, the interviewing officers made it clear to Mrs Akram that she was there voluntarily and that she could call a halt to the interview at any time if she wished, including if she decided as matters progressed, to obtain legal advice.

Is it likely therefore that, in many of these “reporting agency” cases the court would determine that, even if the Cadder principle applied, there was in fact a waiver of the suspect’s rights if they choose not to see a lawyer? It would seem at first sight that that would be the position.

Each case, in theory, would have to be dealt with on its individual merits and therefore it is possible that, as in Mrs Akram’s case, the suspect is deemed to be sufficiently “informed” to waive their rights, whilst with other suspects, perhaps due to their age, level of education, or mental capability are not determined to have the capacity to reach an informed decision?

One way, of course, to prevent such issues arising would be for some “Duty Advice Solicitor” scheme to be set up for these cases, where the decision not top take advice would be made against a clear backdrop of information about the suspect’s rights, but even then, we can, in certain cases, come back to the “circular” argument of how can a person be informed in their decision to waive their right to legal advice when they have not had legal advice as to the effects of not having legal advice!

 

Conclusion

 

As with many cases which cause the accepted position to be questioned, it is easy to make dire predictions of the disasters to befall the justice system as a result. In most cases, once the implications are fully assessed, it turns out that the feared effects are diluted.

It is, as Premier Zhou Enlai of China is reputed to have said about the effects of the 1789 French Revolution, “too early to tell” if the Akram case will be as disruptive to the system as was Cadder, if not more so.

What it does show is that the Scottish courts are vigilant in their responsibility of ensuring that the Scottish system becomes ECHR compliant, and it is striking in how many ways, both large and small, it has been found wanting over the years.

Hopefully the Carloway Review, presently ongoing, might hopefully see a way to bringing the criminal justice system in Scotland to a position where there is full ECHR compliance and where the press will no longer take the chance of decisions such as this to complain about “Europe” interfering with our law.