PF Glasgow v Parveen Akram: Devolution Minute debate DECISION [1] In this case the minuter, Mrs Parveen Akmal,

has been 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 notication in the prescribed manner to the relevant authorities of changes in her circumstances between certain dates in October 2006 and December 2008, as a result of which she is said to have obtained income support and housing benet to which she was not entitled. A devolution minute has been lodged on her behalf in which it is contended that her right to a fair trial, guaranteed under Article 6 of the European Convention on Human Rights and Fundamental Freedoms, has been denied because the 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 benet of legal assistance. Debate on this matter took place before me on the afternoon 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 the minuter at interview and Crown Production 21 in the case was the relevant transcript. She had been interviewed in connection with possible fraudulent activity jointly by one ofcial of the Department of Work and Pensions and one ofcer of Glasgow City Council in an ofce 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 that she had attended the interview voluntarily in response to a letter and that she had been told that she was free to leave the interview at any time. The following exchange had taken place: Q. The interview letter informed you that youre entitled to seek legal advice. You havent got any legal adviser with you. Have you sought any legal advice? A. No. Q. No, ok. If at any time during the interview you wish to seek legal advice A. Yeah Q. please let me know and the interview will be suspended. A. Thats ne. 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 suspect had the right to access to legal advice from the rst 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 cases involving 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 and none to that by other agencies. [4] The actions of the minuter in declining to seek legal advice did not constitute informed consent, which was the test. Reference was made to the case of Pishchalnikov v Russia, ECtHR application number 7025/04, 24 December 2009 and in particular to paragraphs 76-78 of the judgement. Mr McLaughlin submitted that the importance of whether a request for legal assistance was made or not was not the dening feature of the right: understanding the importance of the right was the central issue. 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 35 of 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 minuters case. 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 website referring to the decision of Sheriff Scott at Edinburgh in the case of Pierre Levicky, as an example of the application of the Cadder principles to a case involving an agency other 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 be validly made. [7] In the present case the minuter had not been acting with the benet of legal advice 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, knowing and intelligent relinquishment of that right, which had to be established in an unequivocal manner, with minimum guarantees commensurate to its importance. The fact that the minuter had been in an interview situation and had replied to a non-police interrogation 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 interviews conducted by the police and another for interviews conducted by other agencies; there should be consistency. [8] In reply the procurator scal depute (Miss Ferrier) submitted that the cases prayed-in-aid by Mr McLaughlin could all be distinguished. The minuter had been interviewed 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 had knowingly 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. She had not been detained. She had been interviewed by a non-police agency. The authorities cited, and Cadder specically, all related to police questioning. An appearance before a non-police reporting agency was a different situation from a detention scenario. That was a critical fact: any pressure on the minuter was not the same 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 an informed decision on her part. Reference had been made more than once in the interview 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 rights were 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 suspects 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. That is clear from the speech of Lord Hope of Craighead at paragraph 50 of 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 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 signicant that the procurator scal depute in her submissions to me used the phrase reporting agency because that reects the fact that the agencies involved in this case were used to reporting matters which they had investigated to the ofce of the procurator scal 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 selfincrimination 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. [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 which the normal rules of admissibility of evidence were applied to enquiries carried out by agencies other than the police; Lawrie v Muir itself is a case involving a reporting agency.

[12] The BBC report of the case of M. Levicky is too brief for the ratio to be discerned but insofar as it applies the principle to which I have referred in the case of an agency other than the police I respectfully agree with the conclusion reached by Sheriff Scott. The Issue of Waiver [13] Accordingly I must pass on to the question of waiver. In Cadder, Lord Rodger had this to say, at paragraph 96: Secondly, although the Court has deliberately refrained from entering into the circumstances of this particular case, which is still to be considered by the appeal court, it is common ground that the appellant actually declined to have intimation of his detention sent to any solicitor. It might therefore be that, had he had a right to consult a solicitor, he would have waived that right. 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. The passage from Lord Binghams speech in Millar v PF Elgin which was quoted to me by Mr McLaughlin recognizes that a person has the right to waive his or her Convention rights. This right was also recognized in Jude & Ors, per the Opinion of the Lord Justice Clerk at paragraph 32. Is that what the minuter has done in the present case? [14] There appeared to me to be force in the argument presented by the Crown that the right to seek legal advice had been repeatedly pointed out to Mrs Parveen Akram by the interviewer in the passages from the transcript which I quoted earlier. 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. She was told that the interview would be suspended should she indicate that she wished to seek legal advice. She did not do so at any time. In these circumstances I consider that she must be held to have waived her right to seek legal advice at the time of the interview on 9 December 2008. [15] A further question then arises: was this an informed decision, freely taken? Her reply at the end of the extract quoted earlier clearly suggests that she understood what had been said to her. In respect of this issue Mr McLaughlin argued that the Opinion of the Lord Justice-Clerk in Jude & Ors at paragraph 32 34 should be interpreted to mean that no decision as to whether or not to seek legal advice could be taken in the absence of legal advice; it was accepted by Mr McLaughlin that this

argument was circular (in that it suggested that a suspect had to obtain legal advice in order to decide if he required to obtain legal advice). It was said that paragraphs 76-78 in the case of Pishchalnikov applied in these circumstances. [16] To deal with these submissions in reverse order, the court in Pishchalnikovs case recognized at paragraph 78 that a suspect had the right to waive his rights in respect of access to legal advice before going on to say this: 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. (my italics). Pishchalnikov had asked repeatedly for legal assistance but had received none (paragraphs 7 & 8). In the passages to which reference was made by Mr McLaughlin the court was considering the Russian Governments argument that, having been advised of his right not to make a self-incriminating statement, the accused had impliedly waived his right by confessing his guilt. The circumstances of the present case are very different. The minuter did not ask for legal advice. She was advised of her right to seek legal advice but expressly declined to exercise that right. It was not suggested that her responses to the questions put to her were to be construed as an implied waiver. Accordingly Pishchalnikov may readily be distinguished from Mrs Parveen Akrams case on its facts. [17] The sections of the Opinion of the Lord Justice Clerk in the cases of Jude & Ors on which Mr McLaughlin relied must be seen in their proper context, which is a consideration of the situation pertaining under Section 14 of the 1995 Act prior to its amendment by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. At the relevant time the rights accorded to a suspect under Section 14 did not include the right of access to legal advice prior to or during an interview; accordingly suspects were not advised of any such rights by the police. It follows that in the absence of legal advice a suspect would be unable to make an informed decision in relation to waiver as he did not know that he enjoyed the right which he was said to have waived. (In these circumstances any waiver would necessarily be an implied one since a person would not be able expressly to waive a right which they did not know they had). I do not accept that in these passages his Lordship was seeking to present the position described as circular by Mr McLaughlin. [18] The situation in the cases of Jude & Ors is rather different from Mrs Parveen Akrams 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. [19] It follows that in the circumstances of this case I consider that the evidence of what was said at that interview is not inadmissible by virtue of the fact that Mrs Parveen Akram did not receive legal advice; and I refuse the devolution minute. Sean Francis Murphy QC Sheriff of Glasgow & Strathkelvin 1 September 2011