PF Glasgow v Parveen Akram: Devolution Minute debateDECISION
[1] In this case the minuter, Mrs Parveen Akmal, has been charged on summarycomplaint with two counts under Section 111(1A) of the Social SecurityAdministration Act 1992, as amended, by knowingly failing to give promptnotification in the prescribed manner to the relevant authorities of changes in her circumstances between certain dates in October 2006 and December 2008, as a resultof which she is said to have obtained income support and housing benefit to which shewas not entitled. A devolution minute has been lodged on her behalf in which it iscontended that her right to a fair trial, guaranteed under Article 6 of the EuropeanConvention on Human Rights and Fundamental Freedoms, has been denied becausethe prosecution proceeds 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. Debate on this matter took place before me on theafternoon of 31 August 2011.
Agreed or Accepted Facts
[2]Certain facts were not in dispute between the parties. It was accepted that the prosecution intended to lead evidence of the replies said to have been made by theminuter at interview and Crown Production 21 in the case was the relevant transcript.She had been interviewed in connection with possible fraudulent activity jointly byone official of the Department of Work and Pensions and one officer of Glasgow CityCouncil in an office of that Council in George Street, Glasgow on 9 December 2008. No legal assistance was available to her at that interview. It was common ground thatshe had attended the interview voluntarily in response to a letter and that she had beentold that she was free to leave the interview at any time. The following exchange hadtaken place:Q.The interview letter informed you that you’re entitled to seek legal advice.You haven’t got any legal adviser with you. Have you sought any legaladvice?A.No.Q.No, ok. If at any time during the interview you wish to seek legal advice …A.YeahQ.… please let me know and the interview will be suspended.A.That’s fine.The minuter declined to seek legal advice before or during the interview.
Submissions
[3]For the minuter, Mr McLaughlin submitted with reference to the cases of
Salzduz v Turkey (2008) 49 EHRR 421, Panovits v Cyprus ECtHR, application
number 4268/04, 11 March 2009
and
Cadder v HMA 2010 SLT 1125
that a suspecthad 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.Interview of someone suspected of fraudulent activity by a non-police agency fell to be treated in the same way. The case of
Miller 2002 SC(PC) 30
was one example of an attempt by the Crown to restrict the right to access to legal advice to casesinvolving detention under Section 14 of the Criminal Procedure (Scotland) Act 1995 but that whole issue was not settled. Presently there were a number of appeals due to be heard by way of references the Supreme Court but all related to police activity andnone to that by other agencies.[4]The actions of the minuter in declining to seek legal advice did not constituteinformed consent, which was the test. Reference was made to the case of
Pishchalnikov v Russia, ECtHR application number 7025/04, 24 December 2009
andin particular to paragraphs 76-78 of the judgement. Mr McLaughlin submitted thatthe importance of whether a request for legal assistance was made or not was not thedefining feature of the right: understanding the importance of the right was the centralissue. The Full Bench decision in the cases of
Jude, Hodgson & Birnie v HMA [2011]Scot HC HCJAC 46
had applied that test. Reference was made to paragraphs 31 – 35of the Opinion of the Lord Justice Clerk. The second of the two reasons given in paragraph 32 was said to be the critical point and that was relevant to the minuter’scase. Her consent to be interviewed had not been informed by legal advice.[5]Mr McLaughlin provided with me with a printout from a BBC news websitereferring to the decision of Sheriff Scott at Edinburgh in the case of Pierre Levicky, asan example of the application of the
Cadder
principles to a case involving an agencyother than the police.[6]The speech of Lord Bingham of Cornhill in
Millar v PF Elgin [2001] UKPC D4
at paragraph 27 made it clear that any waiver of a Convention right had to bevalidly made.[7]In the present case the minuter had not been acting with the benefit of legaladvice which she ought to have been given. On account of that defect the contents of her interview should be ruled inadmissible. There had been no voluntary, knowingand intelligent relinquishment of that right, which had to be established in anunequivocal manner, with minimum guarantees commensurate to its importance. Thefact that the minuter had been in an interview situation and had replied to a non-policeinterrogation was not the issue: the central issue was the principle set out in
Jude &Ors.
That principle applied to all cases. There should not be one rule for interviewsconducted by the police and another for interviews conducted by other agencies; thereshould be consistency.[8]In reply the procurator fiscal depute (Miss Ferrier) submitted that the cases prayed-in-aid by Mr McLaughlin could all be distinguished. The minuter had beeninterviewed by a non-police agency. She knew that she was entitled to seek legal
advice. She was an adult aged 36-38 at the time of the alleged offences who hadknowingly relinquished her right to legal advice. Reference was made to the terms of the passages from the transcript which I set out earlier. She had not been placed under any pressure; on the contrary she had been told that she could leave at any time. Shehad not been detained. She had been interviewed by a non-police agency. Theauthorities cited, and
Cadder
specifically, all related to police questioning. Anappearance before a non-police reporting agency was a different situation from adetention scenario. That was a critical fact: any pressure on the minuter was not thesame as that placed upon a person being interviewed by the police.[9]The minuter had waived her right to legal advice and that had been aninformed decision on her part. Reference had been made more than once in theinterview to her right to seek legal advice; she had repeatedly been spoken to about it.The facts and circumstances here were that she had clearly understood what her rightswere and she had declined legal advice. She had chosen not to seek legal advice. A person had to be able to make her own choice and the minuter had clearly done that.
Decision
Applicability of the “Cadder” Principles
[10]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 weredenied access to legal advice before being questioned by the authorities in the form of the police. That is clear from the speech of Lord Hope of Craighead at paragraph 50of
Cadder
, and from the speech of Lord Rodger of Earlsferry at paragraphs 70-73.The principle itself is so clearly recognised in these passages that I can see no reasonto distinguish between the police and any other agency which is questioning a personsuspected 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 toreporting matters which they had investigated to the office of the procurator fiscal sothat prosecutions might be undertaken. Accordingly their enquiries must be seen assharing 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 anagency, where the contents of the interview are likely to be used in evidence, as itwould 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 respondenturges. The principle must be applied equally to all enquiries which are likely to leadto criminal proceedings.[11]The well-known cases of
Lawrie v Muir 1950 JC 19
and
Fairley v Fishmongers of London 1951 JC 14
appear to me to be examples of cases in whichthe normal rules of admissibility of evidence were applied to enquiries carried out byagencies other than the police;
Lawrie v Muir
itself is a case involving a “reporting”agency.
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