Leverick, F.

English

Enlighten

       Leverick, F. (2010) The right to legal advice during detention: HM Advocate v McLean. Edinburgh Law Review, 14 (2). pp. 300-305. ISSN 1364-9809  http://eprints.gla.ac.uk/37953/  Deposited on: 03 April 2012   Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk 300 the edinburgh law review Vol 14 2010The question must be approached as one of principle. If guidance as to the exerciseof prosecutorial discretion is required by article 8(2) of the ECHR, then the relevantsource of guidance is that found in the Crown Office Prosecution Code.31 Like theEnglish Code for Crown Prosecutors, it sets out a list of general public interestfactors to be taken into account both for and against prosecution.32 While a detailedcomparison of the two Codes is outwith the scope of this note, it is fair to say thatthey adopt a broadly similar approach in this respect, and it is difficult to see how anapplication of the Scottish code in the case of Daniel James would have provided anymore helpful guidance than of which the DPP was able to avail himself.There is a more interesting general point, of course, which is the extent to whicharticle 8(2) may require specific prosecutorial guidelines to be issued in other areas.It seems unlikely that assisted suicide is sui generis to the extent that the generalprovisions of the Code for Crown Prosecutors suffice for every offence but thatone.33 That point, however, is for the future. For the meantime, the only relevantdifference between the position in England and Scotland is that the Director ofPublic Prosecutions has been obliged by a court order to produce guidelines on theprosecution of assisted suicide, and the Lord Advocate has not. Given that the ordermade by the House of Lords was a consequence of the application of the ECHR, itshould be self-evident that this difference cannot and does not justify the absence ofsuch guidelines in Scotland.James ChalmersUniversity of EdinburghEdinLR Vol 14 pp 300-305DOI: 10.3366/E1364980910001381The Right to Legal Advice During Detention:HM Advocate v McLeanIt may come as a surprise to those not well versed in Scottish criminal procedurethat a suspect who has been detained for police questioning has no right to legaladvice during this period. In HM Advocate v McLean,1 the ECHR compatibility ofthis position was considered by a Full Bench of seven judges.31 Crown Office and Procurator Fiscal Service, Prosecution Code (2001) (available atwww.copfs.gov.uk/Publications/2001/05/prosecutioncode).32 At 6-8.33 The CPS does, however, publish more detailed guidance on many offences: see www.cps.gov.uk/legal/.In Scotland, the Crown Office is rather more circumspect, with exceptions: see e.g. the (undated)“Crown Office and Procurator Fiscal Service Policy on Causing Death by Driving”, available atwww.copfs.gov.uk/Publications/Driving.1 [2009] HCJAC 97, 2010 SLT 73.Vol 14 2010 analysis 301A. BACKGROUNDIn Scots law, a distinction exists between “detention” and “arrest”. A suspect may bedetained for police questioning for up to six hours.2 He does not have the right to havea solicitor present, although he can have a solicitor informed of his detention.3 Otherthan being obliged to give his name and address,4 the suspect has the right to remainsilent. No adverse inferences may be drawn from his silence5 but any answers he doesgive can be used in evidence. Once a suspect is arrested and charged, however, anystatements he makes to the police (other than a reply to the charge itself) cannot beused as evidence6 and he gains the right to a private interview with a solicitor prior tohis first court appearance or judicial examination.7The ECHR compatibility of leading evidence of admissions made during detentionand in the absence of legal advice had already been unsuccessfully challenged inPaton v Ritchie,8 but the issue was potentially re-opened by Salduz v Turkey,9 adecision of the Grand Chamber of the European Court of Human Rights. In Salduz,the applicant was convicted of aiding and abetting a terrorist organisation on theevidence of statements he made in custody without legal advice. The Grand Chamberheld unanimously that article 6(1) had been violated, as it requires that:10as a rule, access to a lawyer should be provided as from the first interrogation of a suspectby the police, unless it is demonstrated in the light of the particular circumstances ofthe case that there are compelling reasons to restrict this right. Even where compellingreasons may exceptionally justify denial of access to a lawyer, such restriction . . . must notunduly prejudice the rights of the accused under Article 6. The rights of the defence willin principle be irretrievably prejudiced when incriminating statements made during policeinterrogation without access to a lawyer are used for a conviction.In the light of this statement, there was much speculation about the potentialconsequences for Scottish criminal practice,11 a question that has now been answeredin McLean.2 Criminal Procedure (Scotland) Act 1995 s 14(2).3 Section 15(1).4 And other information necessary to establish identity: s 14(9).5 Larkin v HM Advocate 2005 SLT 1087.6 The position is more complex where a suspect has been arrested but not charged, as it was held inJohnston v HM Advocate 1993 JC 187 that in such circumstances it is possible for the police to continueto question him and for any answers he provides to be used in evidence, subject to the general test offairness. More importantly for present purposes, however, Johnston confirmed that the suspect does gainthe right to legal advice upon arrest, even if he has not been charged (at 195 per the Lord Justice Clerk(Ross)).7 Criminal Procedure (Scotland) Act 1995 s 17(2).8 2000 JC 271, endorsed by a Full Bench in Dickson v HM Advocate 2001 JC 203.9 (2009) 49 EHRR 19.10 Para 55 (emphasis added).11 See e.g. P W Ferguson, “The right of access to a lawyer” 2009 SLT (News) 107 at 109-111.302 the edinburgh law review Vol 14 2010B. HM ADVOCATE v McLEANIn McLean, the minuter had been detained in relation to the theft of a motor vehicleand wilful fire-raising. He had asked that a solicitor be informed of his detention butdid not request legal advice prior to or during the interview and was not offered it. Hemade admissions during questioning that the Crown wished to rely on at his trial. Adevolution minute was lodged claiming that the use of these admissions would violatearticle 6. In the light of Dickson v HM Advocate,12 the issue was referred to a benchof seven judges.In an opinion delivered by the Lord Justice General (Hamilton), the court heldthat reliance by the prosecutor on statements obtained in the absence of legal advicewould not automatically render the proceedings unfair and remitted the case for trial.It offered two alternative lines of argument in support of its decision.The first was based on its reading of Salduz. The court noted two possibleinterpretations of the statement set out above.13 One was that the European Courtintended to lay down an absolute rule that any statements made by the accused in theabsence of legal advice cannot be used in evidence, regardless of any other safeguardspresent in the system. Alternatively, the court stated, Salduz could be interpreted tomean that:14whether or not there has been a fair trial will depend on the particular circumstances ofthe case, including what arrangements the jurisdiction in question has made for access tolegal advice, seen against the guarantees which are otherwise in place in that jurisdiction tosecure a fair trial.The court chose to favour the second interpretation.15 In doing so, it relied on JudgeBratza’s concurring opinion in Salduz in which he commented that the principle beingenunciated was “consistent with the court’s earlier case law”.16 In earlier cases,17the High Court noted, the European Court had not definitively stated that lack ofaccess to a lawyer would, in itself, render incriminating statements inadmissible andtherefore it had not intended to do so in Salduz.Having settled on this interpretation of Salduz, the High Court had then toconsider whether Scots law contained sufficient guarantees to ensure a fair trial,even in the absence of legal advice during detention. The court concluded that it did,pointing to a number of protections18 including: (1) the caution given to suspects thatthey need not answer questions19 but that any answers given may be used as evidence;(2) the tape-recording of interviews; (3) the inadmissibility of statements obtained12 2001 JC 203.13 See text accompanying n 10.14 McLean at para 24.15 Para 25.16 Para 25 of McLean, citing para O-I2 of Salduz.17 Such as Murray v United Kingdom (1996) 22 EHRR 29 and Brennan v United Kingdom (2002) 34EHRR 18.18 McLean at para 27.19 Other than those concerning identity (see n 4).Vol 14 2010 analysis 303through coercion; (4) the corroboration requirement, which ensures that a convictioncannot be based on a confession alone; (5) the fact that adverse inferences cannotbe drawn at trial from silence during police questioning; (6) the limited duration ofdetention (six hours); and (7) the police’s discretion to allow a lawyer to be presentwhich is “likely to be exercised where the detainee is perceived to be a vulnerableperson”.20The court’s second line of argument was that, even if the Grand Chamber didintend to set out an absolute rule that statements made without access to legaladvice are always inadmissible, this principle “cannot and should not”21 be applied inScotland. Section 2(1)(a) of the Human Rights Act 1998 only requires that judgmentsof the European Court are taken “into account” and as such the Grand Chamber’sjudgment was not binding. Against this, the court noted22 the House of Lords’statement in R (Anderson) v Home Secretary23 that it “will not without good reasondepart from the principles laid down in a carefully considered judgment of the[European] court sitting as a Grand Chamber”.24 But as Salduz did not involvethe United Kingdom or examine any of the features of the Scottish criminal justicesystem then it could not be said to have been “carefully considered” and although it“commands great respect, we are not obliged to apply it”.25C. DISCUSSIONGiven the mayhem that could have resulted for prosecutions if the oppositeconclusion had been reached, there may be many on the side of the Crown whoare breathing a sigh of relief. Whether the court was correct in its interpretationof Salduz may not be known until a subsequent case arises, but it is surelynot the most obvious interpretation. The statement in Salduz that rights “willin principle be irretrievably prejudiced”26 when admissions made without accessto a lawyer are used in evidence seems pretty conclusive and the fact that theHigh Court did not rely on this argument alone suggests that it recognisedthat it might be open to criticism on this front. The court’s assertion that its“balancing process” interpretation is “consistent with the [European] Court’s earliercase law”27 is not especially persuasive; the “absolute rule” interpretation couldequally be read as consistent with prior case law. The court’s second line ofargument – that it is entitled to disregard a decision of the Grand Chamber ofthe European Court –might also be questioned. In Secretary of State for theHome Department v F,28 a more recent case than Anderson, Lord Hoffmann20 McLean at para 27.21 Para 31.22 Para 29.23 [2002] UKHL 46, [2003] 1 AC 837.24 At para 18 per Lord Bingham of Cornhill.25 Para 29.26 Salduz at para 55.27 McLean at para 25.28 [2009] UKHL 28, [2009] 3 WLR 74.304 the edinburgh law review Vol 14 2010suggested that to reject such a decision “would almost certainly put [the UK] inbreach of the international obligation which it accepted when it acceded to theConvention”.29Issues of interpretation aside, the question remains of whether suspects are, in fact,sufficiently protected by the present arrangements. It is true that there are a numberof protections that make the need for legal advice less pressing. This can be contrastedto the situation in England and Wales, where suspects do have a right to legal adviceduring police questioning,30 but where the maximum detention period is longer31and adverse inferences can be drawn at trial from a failure to answer questions.32Nonetheless, there are reasons for concern. First, although suspects have a right tosilence, how effective the caution is in informing them of this is debateable, giventhat it is only mentioned once, at the start of the interview, when the suspect maybe overwhelmed and confused, and there is no solicitor present to remind him of itas questioning progresses.33 Secondly, much was made of the fact that confessionsobtained as a result of coercion are inadmissible, and while, by and large, this ruledoes seem to have operated protectively, this has not always been the case.34 Thirdly,one might question the court’s confidence that the police’s discretion to admit legalrepresentation where the circumstances demand it provides sufficient protection tovulnerable persons. It will not always be obvious that a suspect is vulnerable35 andthe fact that people do make false confessions36 shows that we should not be toocomplacent.37 On the other hand, even if one accepts these concerns, it is perhapssimplistic to conclude that providing legal advice during police questioning willprevent miscarriages of justice occurring.38 It might also be said that even if a right tolegal advice was established, there is no guarantee it would be taken up by those whoneed it most.3929 Para 70. See also R (Animal Defenders International) v Secretary of State for Culture, Media and Sport[2008] UKHL 15, [2008] 1 AC 1312 at para 37 per Lord Bingham of Cornhill.30 Police and Criminal Evidence Act 1984 s 58.31 Up to 36 hours under section 41 of the 1984 Act.32 Criminal Justice and Public Order Act 1994 s 34.33 A point made in prior European cases (see those cited in F P Davidson, Evidence (2007) para 9.51)and indeed alluded to in Salduz itself (at para 54).34 See e.g. Stewart v Hingston 1997 SLT 442.35 J Pearse, “Police interviewing: the identification of vulnerabilities” (2006) 5 Journal of Community andApplied Social Psychology 147; G H Gudjonsson et al, Persons at Risk during Interviews in PoliceCustody: The Identification of Vulnerabilities (1994).36 See e.g. the cases cited in part 3 of G HGudjonsson, The Psychology of Interrogations and Confessions:A Handbook (2003).37 Admittedly the corroboration requirement provides additional protection, but this has been watereddown considerably where confessions are concerned: see Davidson, Evidence (n 33) paras 15.64-15.71.38 D Dixon, “Common sense, legal advice and the right of silence” [1991] PL 233 at 242; J Baldwin, TheRole of Legal Representatives at the Police Station (1993).39 Although in the English context, requests for legal advice did increase after the right was legislatedfor: see T Bucke and D Brown, Police Custody: Police Powers and Suspects’ Rights under the RevisedPACE Codes of Practice (1997) 19.Vol 14 2010 analysis 305As a final point, McLean might not represent the end of the matter as it has beenreported that the case will be appealed to the Supreme Court.40 The High Court hasonce before found itself overruled by London in a significant case concerning article6 and the use of statements made by the accused (albeit that the High Court’s rulingthere was in the accused’s favour).41 It remains to be seen whether the High Court’sdecision in McLean will withstand the Supreme Court’s scrutiny.Fiona LeverickUniversity of Glasgow40 “Judges reject police questioning human rights challenge”, Scottish Legal News 23 Oct 2009.41 Brown v Stott 2001 SC (PC) 43.

The right to legal advice during detention: HM Advocate v McLean

Enlighten: Publications

 
 
 
 
 
 
 
Leverick, F. (2010) The right to legal advice during detention: HM 
Advocate v McLean. Edinburgh Law Review, 14 (2). pp. 300-305. ISSN 
1364-9809 
 
http://eprints.gla.ac.uk/37953/ 
 
Deposited on: 03 April 2012 
 
 
Enlighten – Research publications by members of the University of Glasgow 
http://eprints.gla.ac.uk 
300 the edinburgh law review Vol 14 2010
The question must be approached as one of principle. If guidance as to the exercise
of prosecutorial discretion is required by article 8(2) of the ECHR, then the relevant
source of guidance is that found in the Crown Office Prosecution Code.31 Like the
English Code for Crown Prosecutors, it sets out a list of general public interest
factors to be taken into account both for and against prosecution.32 While a detailed
comparison of the two Codes is outwith the scope of this note, it is fair to say that
they adopt a broadly similar approach in this respect, and it is difficult to see how an
application of the Scottish code in the case of Daniel James would have provided any
more helpful guidance than of which the DPP was able to avail himself.
There is a more interesting general point, of course, which is the extent to which
article 8(2) may require specific prosecutorial guidelines to be issued in other areas.
It seems unlikely that assisted suicide is sui generis to the extent that the general
provisions of the Code for Crown Prosecutors suffice for every offence but that
one.33 That point, however, is for the future. For the meantime, the only relevant
difference between the position in England and Scotland is that the Director of
Public Prosecutions has been obliged by a court order to produce guidelines on the
prosecution of assisted suicide, and the Lord Advocate has not. Given that the order
made by the House of Lords was a consequence of the application of the ECHR, it
should be self-evident that this difference cannot and does not justify the absence of
such guidelines in Scotland.
James Chalmers
University of Edinburgh
EdinLR Vol 14 pp 300-305
DOI: 10.3366/E1364980910001381
The Right to Legal Advice During Detention:
HM Advocate v McLean
It may come as a surprise to those not well versed in Scottish criminal procedure
that a suspect who has been detained for police questioning has no right to legal
advice during this period. In HM Advocate v McLean,1 the ECHR compatibility of
this position was considered by a Full Bench of seven judges.
31 Crown Office and Procurator Fiscal Service, Prosecution Code (2001) (available at
www.copfs.gov.uk/Publications/2001/05/prosecutioncode).
32 At 6-8.
33 The CPS does, however, publish more detailed guidance on many offences: see www.cps.gov.uk/legal/.
In Scotland, the Crown Office is rather more circumspect, with exceptions: see e.g. the (undated)
“Crown Office and Procurator Fiscal Service Policy on Causing Death by Driving”, available at
www.copfs.gov.uk/Publications/Driving.
1 [2009] HCJAC 97, 2010 SLT 73.
Vol 14 2010 analysis 301
A. BACKGROUND
In Scots law, a distinction exists between “detention” and “arrest”. A suspect may be
detained for police questioning for up to six hours.2 He does not have the right to have
a solicitor present, although he can have a solicitor informed of his detention.3 Other
than being obliged to give his name and address,4 the suspect has the right to remain
silent. No adverse inferences may be drawn from his silence5 but any answers he does
give can be used in evidence. Once a suspect is arrested and charged, however, any
statements he makes to the police (other than a reply to the charge itself) cannot be
used as evidence6 and he gains the right to a private interview with a solicitor prior to
his first court appearance or judicial examination.7
The ECHR compatibility of leading evidence of admissions made during detention
and in the absence of legal advice had already been unsuccessfully challenged in
Paton v Ritchie,8 but the issue was potentially re-opened by Salduz v Turkey,9 a
decision of the Grand Chamber of the European Court of Human Rights. In Salduz,
the applicant was convicted of aiding and abetting a terrorist organisation on the
evidence of statements he made in custody without legal advice. The Grand Chamber
held unanimously that article 6(1) had been violated, as it requires that:10
as a rule, access to a lawyer should be provided as from the first interrogation of a suspect
by the police, unless it is demonstrated in the light of the particular circumstances of
the case that there are compelling reasons to restrict this right. Even where compelling
reasons may exceptionally justify denial of access to a lawyer, such restriction . . . must not
unduly prejudice the rights of the accused under Article 6. The rights of the defence will
in principle be irretrievably prejudiced when incriminating statements made during police
interrogation without access to a lawyer are used for a conviction.
In the light of this statement, there was much speculation about the potential
consequences for Scottish criminal practice,11 a question that has now been answered
in McLean.
2 Criminal Procedure (Scotland) Act 1995 s 14(2).
3 Section 15(1).
4 And other information necessary to establish identity: s 14(9).
5 Larkin v HM Advocate 2005 SLT 1087.
6 The position is more complex where a suspect has been arrested but not charged, as it was held in
Johnston v HM Advocate 1993 JC 187 that in such circumstances it is possible for the police to continue
to question him and for any answers he provides to be used in evidence, subject to the general test of
fairness. More importantly for present purposes, however, Johnston confirmed that the suspect does gain
the right to legal advice upon arrest, even if he has not been charged (at 195 per the Lord Justice Clerk
(Ross)).
7 Criminal Procedure (Scotland) Act 1995 s 17(2).
8 2000 JC 271, endorsed by a Full Bench in Dickson v HM Advocate 2001 JC 203.
9 (2009) 49 EHRR 19.
10 Para 55 (emphasis added).
11 See e.g. P W Ferguson, “The right of access to a lawyer” 2009 SLT (News) 107 at 109-111.
302 the edinburgh law review Vol 14 2010
B. HM ADVOCATE v McLEAN
In McLean, the minuter had been detained in relation to the theft of a motor vehicle
and wilful fire-raising. He had asked that a solicitor be informed of his detention but
did not request legal advice prior to or during the interview and was not offered it. He
made admissions during questioning that the Crown wished to rely on at his trial. A
devolution minute was lodged claiming that the use of these admissions would violate
article 6. In the light of Dickson v HM Advocate,12 the issue was referred to a bench
of seven judges.
In an opinion delivered by the Lord Justice General (Hamilton), the court held
that reliance by the prosecutor on statements obtained in the absence of legal advice
would not automatically render the proceedings unfair and remitted the case for trial.
It offered two alternative lines of argument in support of its decision.
The first was based on its reading of Salduz. The court noted two possible
interpretations of the statement set out above.13 One was that the European Court
intended to lay down an absolute rule that any statements made by the accused in the
absence of legal advice cannot be used in evidence, regardless of any other safeguards
present in the system. Alternatively, the court stated, Salduz could be interpreted to
mean that:14
whether or not there has been a fair trial will depend on the particular circumstances of
the case, including what arrangements the jurisdiction in question has made for access to
legal advice, seen against the guarantees which are otherwise in place in that jurisdiction to
secure a fair trial.
The court chose to favour the second interpretation.15 In doing so, it relied on Judge
Bratza’s concurring opinion in Salduz in which he commented that the principle being
enunciated was “consistent with the court’s earlier case law”.16 In earlier cases,17
the High Court noted, the European Court had not definitively stated that lack of
access to a lawyer would, in itself, render incriminating statements inadmissible and
therefore it had not intended to do so in Salduz.
Having settled on this interpretation of Salduz, the High Court had then to
consider whether Scots law contained sufficient guarantees to ensure a fair trial,
even in the absence of legal advice during detention. The court concluded that it did,
pointing to a number of protections18 including: (1) the caution given to suspects that
they need not answer questions19 but that any answers given may be used as evidence;
(2) the tape-recording of interviews; (3) the inadmissibility of statements obtained
12 2001 JC 203.
13 See text accompanying n 10.
14 McLean at para 24.
15 Para 25.
16 Para 25 of McLean, citing para O-I2 of Salduz.
17 Such as Murray v United Kingdom (1996) 22 EHRR 29 and Brennan v United Kingdom (2002) 34
EHRR 18.
18 McLean at para 27.
19 Other than those concerning identity (see n 4).
Vol 14 2010 analysis 303
through coercion; (4) the corroboration requirement, which ensures that a conviction
cannot be based on a confession alone; (5) the fact that adverse inferences cannot
be drawn at trial from silence during police questioning; (6) the limited duration of
detention (six hours); and (7) the police’s discretion to allow a lawyer to be present
which is “likely to be exercised where the detainee is perceived to be a vulnerable
person”.20
The court’s second line of argument was that, even if the Grand Chamber did
intend to set out an absolute rule that statements made without access to legal
advice are always inadmissible, this principle “cannot and should not”21 be applied in
Scotland. Section 2(1)(a) of the Human Rights Act 1998 only requires that judgments
of the European Court are taken “into account” and as such the Grand Chamber’s
judgment was not binding. Against this, the court noted22 the House of Lords’
statement in R (Anderson) v Home Secretary23 that it “will not without good reason
depart from the principles laid down in a carefully considered judgment of the
[European] court sitting as a Grand Chamber”.24 But as Salduz did not involve
the United Kingdom or examine any of the features of the Scottish criminal justice
system then it could not be said to have been “carefully considered” and although it
“commands great respect, we are not obliged to apply it”.25
C. DISCUSSION
Given the mayhem that could have resulted for prosecutions if the opposite
conclusion had been reached, there may be many on the side of the Crown who
are breathing a sigh of relief. Whether the court was correct in its interpretation
of Salduz may not be known until a subsequent case arises, but it is surely
not the most obvious interpretation. The statement in Salduz that rights “will
in principle be irretrievably prejudiced”26 when admissions made without access
to a lawyer are used in evidence seems pretty conclusive and the fact that the
High Court did not rely on this argument alone suggests that it recognised
that it might be open to criticism on this front. The court’s assertion that its
“balancing process” interpretation is “consistent with the [European] Court’s earlier
case law”27 is not especially persuasive; the “absolute rule” interpretation could
equally be read as consistent with prior case law. The court’s second line of
argument – that it is entitled to disregard a decision of the Grand Chamber of
the European Court –might also be questioned. In Secretary of State for the
Home Department v F,28 a more recent case than Anderson, Lord Hoffmann
20 McLean at para 27.
21 Para 31.
22 Para 29.
23 [2002] UKHL 46, [2003] 1 AC 837.
24 At para 18 per Lord Bingham of Cornhill.
25 Para 29.
26 Salduz at para 55.
27 McLean at para 25.
28 [2009] UKHL 28, [2009] 3 WLR 74.
304 the edinburgh law review Vol 14 2010
suggested that to reject such a decision “would almost certainly put [the UK] in
breach of the international obligation which it accepted when it acceded to the
Convention”.29
Issues of interpretation aside, the question remains of whether suspects are, in fact,
sufficiently protected by the present arrangements. It is true that there are a number
of protections that make the need for legal advice less pressing. This can be contrasted
to the situation in England and Wales, where suspects do have a right to legal advice
during police questioning,30 but where the maximum detention period is longer31
and adverse inferences can be drawn at trial from a failure to answer questions.32
Nonetheless, there are reasons for concern. First, although suspects have a right to
silence, how effective the caution is in informing them of this is debateable, given
that it is only mentioned once, at the start of the interview, when the suspect may
be overwhelmed and confused, and there is no solicitor present to remind him of it
as questioning progresses.33 Secondly, much was made of the fact that confessions
obtained as a result of coercion are inadmissible, and while, by and large, this rule
does seem to have operated protectively, this has not always been the case.34 Thirdly,
one might question the court’s confidence that the police’s discretion to admit legal
representation where the circumstances demand it provides sufficient protection to
vulnerable persons. It will not always be obvious that a suspect is vulnerable35 and
the fact that people do make false confessions36 shows that we should not be too
complacent.37 On the other hand, even if one accepts these concerns, it is perhaps
simplistic to conclude that providing legal advice during police questioning will
prevent miscarriages of justice occurring.38 It might also be said that even if a right to
legal advice was established, there is no guarantee it would be taken up by those who
need it most.39
29 Para 70. See also R (Animal Defenders International) v Secretary of State for Culture, Media and Sport
[2008] UKHL 15, [2008] 1 AC 1312 at para 37 per Lord Bingham of Cornhill.
30 Police and Criminal Evidence Act 1984 s 58.
31 Up to 36 hours under section 41 of the 1984 Act.
32 Criminal Justice and Public Order Act 1994 s 34.
33 A point made in prior European cases (see those cited in F P Davidson, Evidence (2007) para 9.51)
and indeed alluded to in Salduz itself (at para 54).
34 See e.g. Stewart v Hingston 1997 SLT 442.
35 J Pearse, “Police interviewing: the identification of vulnerabilities” (2006) 5 Journal of Community and
Applied Social Psychology 147; G H Gudjonsson et al, Persons at Risk during Interviews in Police
Custody: The Identification of Vulnerabilities (1994).
36 See e.g. the cases cited in part 3 of G HGudjonsson, The Psychology of Interrogations and Confessions:
A Handbook (2003).
37 Admittedly the corroboration requirement provides additional protection, but this has been watered
down considerably where confessions are concerned: see Davidson, Evidence (n 33) paras 15.64-15.71.
38 D Dixon, “Common sense, legal advice and the right of silence” [1991] PL 233 at 242; J Baldwin, The
Role of Legal Representatives at the Police Station (1993).
39 Although in the English context, requests for legal advice did increase after the right was legislated
for: see T Bucke and D Brown, Police Custody: Police Powers and Suspects’ Rights under the Revised
PACE Codes of Practice (1997) 19.
Vol 14 2010 analysis 305
As a final point, McLean might not represent the end of the matter as it has been
reported that the case will be appealed to the Supreme Court.40 The High Court has
once before found itself overruled by London in a significant case concerning article
6 and the use of statements made by the accused (albeit that the High Court’s ruling
there was in the accused’s favour).41 It remains to be seen whether the High Court’s
decision in McLean will withstand the Supreme Court’s scrutiny.
Fiona Leverick
University of Glasgow
40 “Judges reject police questioning human rights challenge”, Scottish Legal News 23 Oct 2009.
41 Brown v Stott 2001 SC (PC) 43.


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The right to legal advice during detention: HM Advocate v McLean

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