SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT ALLOA
| | Case No: B304/11 JUDGMENT OF SHERIFF K J McGOWAN In Application under section 68 of the Children (Scotland) Act 1995 by the Children's Reporter, Alloa in respect of JM __________ |
Reporter: Evans, Syme; JM: Anderson, Advocate; X (Relevant Person): Mallon; Y (Relevant Person): McGuinness; Safeguarder: Dunbar
Alloa, 6 June 2012
Introduction
[1] This is an application under section 68 of the Children (Scotland) Act 1995 ("the 1995 Act") by the Children's Reporter for Alloa in respect of a child, JM (DoB: 6 September 1998).
[2] The factual allegation underlying the referral is that on a date in January 2011, JM committed a serious offence of a sexual nature.
[3] The matter was referred to the Children's Hearing. The grounds of referral were not accepted and an application was thereafter made by the Reporter to find whether the grounds of referral were established. The matter initially came before the Court in November 2011, when a warrant for intimation was granted and a Safeguarder appointed.
[4] Part of the evidence in the referral was to be an interview with JM conducted at Stirling Police Office on 8 February 2011.
[5] After sundry procedure, a Minute was lodged on behalf of JM challenging the admissibility of that evidence on two grounds, viz.:
a. the interview took place at a time when JM was "in custody" for the purposes of Article 6, ECHR; the interview was conducted without JM having been given access to legal advice prior to or during the interview; and JM did not validly waive his right to receive such advice;
and
b. JM did not understand the common law caution administered to him at the start of the interview, such that the interview was thereafter conducted in a manner which was unfair to him.
[6] On those grounds, it was said that the interview, having been conducted unlawfully and unfairly, evidence of it was inadmissible in the proceeding on the grounds that admitting the evidence would be to (i) render the present proceedings unfair quoad JM; and (ii) violate his Convention right to a fair trial in terms of Article 6 ECHR.
[7] It was agreed that it would be appropriate to have a preliminary hearing (in the form of a proof) as to the circumstances in which the interview took place, with a view to determining the issue of admissibility.
[8] At the preliminary proof, I heard evidence from the lead investigating officer Detective Constable Marie Anderson; her colleague, Detective Constable Julie Slessor; and the child, JM. I also had sight of the initial part of the DVD recording of the interview (Production R1). I was also referred to the Solicitor Access Recording Form (SARF) dated 8 February relating to JM and a police document entitled "Custody Records (2)" relating to JM (Productions JM 1 - 2).
[9] Having heard the evidence and submissions, I found the following facts to be admitted or proved.
Findings in fact
[10] As a result of the change of approach in Scots criminal procedure over the last few years in relation to police interviews, the Association of Chief Police Officers issued a Manual of Guidance on Solicitor Access. Version 1.0 was published in January 2011. DC Anderson was aware that such guidance existed but did not specifically consult it in relation to the interview carried out in this case.
[11] Paragraph 4.1 of that Manual provides inter alia:
"The right to access is one which can be waived, but the greatest of care must be taken if the suspect wishes to waive this right. Any waiver of the rights of a suspect must be an 'informed' waiver, and must be fully recorded."
[12] Paragraph 16 of the ACPOS manual provides:
"16.1 Where the suspect is a child or a vulnerable adult, officers should continue to follow existing procedures in relation to contacting parents, guardians, social workers, appropriate adults etc, to seek their presence during interview. The Act does not alter the fundamental nature of the role of the Responsible Adult or Appropriate Adult.
16.2 The meaning of "child" is taken to be a child under the age of 16 years or, if the child is under supervision by Social Work, under 18 years.
16.3 The test of our approach to the rights of children and vulnerable adults will include if the individual's rights were fully explained and understood, and if any waiver of rights was an 'informed waiver'.
16.4 For children and those aged 16 and 17 there is a presumption that they should have access to advice from a solicitor and every effort should be made to obtain those services. It may be more difficult to establish informed waiver for these individuals.
16.5 Where the suspect is a child, a parent or other responsible adult must be contacted and asked to be present and assist when the rights of solicitor access are explained to the child."
[13] In about February 2011, DC Anderson was appointed as lead investigating officer in respect of allegations made against JM. DC Anderson had learned of the allegation from the Complainer's mother who said that she had spoken to JM's father, X, about it.
[14] On or about 7 February, she contacted X by telephone to make arrangements for JM to attend at Stirling Police Office for the purposes of an interview. She introduced herself to X. She explained that she was investigating an allegation against JM. X seemed to be aware of the allegation, replying "Yes, I know".
[15] DC Anderson explained that she needed to speak to JM at Stirling Police Office. She explained the process which would be followed, including the (then) new SARF procedure; that they would be given the opportunity to speak to a lawyer, but that the interview had to be done at the Police Office. An appointment was arranged for the next day.
[16] From DC Anderson's perspective, she wanted a parent or guardian present to provide support to JM and to make sure he understood what he was being asked.
[17] On 8 February 2011, JM attended Police Office voluntarily at about 10am, accompanied by X. He was met there by DC Anderson and her colleague DC Slessor. JM and X were taken into a witness room adjacent to the reception area. The police officers introduced themselves. JM was detained under section 14 of the Criminal Procedure Act 1995 ("CPA95"). DC Anderson explained that an investigation was being done; that something had been said against JM and that there were a number of questions which she needed to ask; that it was a serious matter; why the interview had to be carried out in the Police Office; and that there was a legal process to be gone through.
[18] DC Anderson explained the process which would be followed at the Charge Bar and in the interview room including the layout out of the room and that there would be audio and visual recording of everything.
[19] DC Anderson said to JM that it was his legal right to speak to a lawyer as allegations had been made against him. He did not say anything. She told JM and X that if they had any questions they were to ask. Neither JM nor X asked any questions. DC Anderson saw X's role as being to provide support and re-assurance to JM. It was explained that X could not answer questions on JM's behalf but was there to make sure JM understood the questions.
[20] JM was very quiet throughout the process. There was not much conversation and no eye contact.
[21] The next stage in the procedure was for JM to be "processed" at the Charge Bar by the Custody Sergeant. When vulnerable persons (such as children) are being processed at the Charge Bar, that area of the police office is cleared of other persons and secured so that the vulnerable person does not come in to contact with any other persons, such as persons in custody.
[22] As a result, there was a delay in JM being taken to the Charge Bar. At about 10.45 am, JM was taken there by DC Anderson and DC Slessor. X was also in attendance.
[23] At the Charge Bar, DC Anderson told the Custody Sergeant that a sexual allegation had been made; that JM was there to be interviewed; and that he had been detained. The Custody Sergeant then asked JM a set of questions such as his name, date of birth, address, whether he had any health issues and so on. JM was also read his rights under Section 15A of the CPA95, including whether he wanted to see a solicitor. The details were recorded on a Custody Record (Production JM2).
[24] After that process had been completed, but whilst still at the Charge Bar area, the SARF process was followed in respect of JM. This consisted of DC Anderson reading out the certain prescribed words to JM and X and recording the answers thereto.
[25] The first question was "You have the right to have a solicitor informed of your detention. Do you wish a solicitor advised of your detention?". In answer to this question, X said "Yes".
[26] The next question was "You also have the right for (sic) a private consultation with a solicitor before being questioned by the police and at any other time during questioning. Do you wish a private consultation with a solicitor before you are questioned?".
[27] DC Anderson explained that a "solicitor" was another word for a "lawyer". She saw the question of waiver as being one for JM. X asked "Do we need one?" Dc Anderson said "It is [JM's] decision". There was some brief communication between the X and JM in the form of a few words or a glance. X said "No, we don't want one at this time".
[28] These responses were recorded in writing: see Production R3/1.
[29] DC Anderson then read out the following words from page 2 of the SARF form: "You have chosen not to have a private consultation with a solicitor. Signing this in no way prevent you from changing your decision at a later time." That section of the SARF form was then signed by JM and countersigned by X. Neither JM nor X asked any questions about the SARF form or process.
[30] Neither JM nor X were asked why they were declining a private consultation with a solicitor. JM and X were not given and did not ask for an opportunity to speak privately with each other before the interview began.
[31] DC Anderson and DC Slessor then took JM and X into the interview room. At the commencement of the interview DC Anderson explained who was present and JM was cautioned. He appreciated that he was being told that if he admitted to anything, it could be used as evidence. JM was asked to confirm that he had been given the opportunity to speak to a solicitor and had declined that opportunity, which he so confirmed.
[32] At the time of the interview, JM was 12 years old. He did not then know what a 'solicitor' was. His demeanour was subdued throughout his time at the police station. X was present throughout.
Authorities
[33] In the course of argument I was referred to the following authorities: S v Miller 2001 SLT 531; Cadder v HMA 2010 SLT 1125; McGowan v B 2012 SLT 37; Ross v HMA HCAJ April 2012; Plonk v Poland (App No. 20310/02), 31 March 2009; Lopata v Russia (App No: 72250/01) 13 July 2010; Duman v Turkey (App No: 28439/03), 23 March 2010; Bortnik v Ukraine (App No: 39582/04), 27 January 2011; Saman v Turkey (App No: 35292/05), 5 April 2011; Panovits v Cyprus (App No: 4268/04), 11 December 2008; Constanda v M and others 1997 SC 217; Kennedy v B 1972 SC 128; Birnie v HMA (2012) HCJAC 64; LB v HM Advocate JC 2003 94; and HMA v Milligan (19 March 2003, Sheriff A.L Stewart, QC, unreported).
Submissions for Reporter
Article 6
[34] The Reporter is seeking to rely on the evidence obtained at the interview on 8 February 2011.
[35] Children's Hearings do not determine criminal charges: S v Miller, Lord President (Rodger) page 531, paragraph 23; Lord MacFadyen paragraph 46.
[36] Children's Hearings do however determine civil rights and obligations and it is in this context that the protection of Article 6 applies to the current proceedings.
[37] A suspect has certain statutory rights: CPA95, section 15A. (2) and (3).
[38] The legislation provides the right to legal consultation prior to or during an interview. The consultation need not occur face to face nor need the solicitor be present during questioning.
[39] This legislation derived from Cadder. The question for the Supreme Court in that case was whether the Crown's reliance on admissions made by a detainee, while being interviewed by the police without access to legal advice before interview, was incompatible with his right to a fair trial. The Supreme Court unanimously held that the lack of access to a solicitor prior to interview was a violation of the accused's Article 6 rights and the subsequent evidence should not therefore be admissible. However, as well as stating that this was not an absolute right, for there may be occasions where there are compelling reasons to restrict it, the court also acknowledged that there will be circumstances where the accused will wish to waive his right to a solicitor: Lord Rodger, paragraph 98.
[40] The issue in relation to waiver of the right of access to a solicitor was considered specifically by the Supreme Court in McGowan. In that case, the issue was whether it was incompatible with Article 6 for the Lord Advocate to seek to rely on interview evidence from an accused of his right to access to legal advice but who had stated he did not wish to exercise this right; and, in particular, whether an accused can be taken to have validly waived his right of access to a lawyer without first having received the advice of a lawyer.
[41] The court opined that it is not an infringement of an accused's Article 6 rights to rely on information provided during a police interview where the accused has waived his right to access to a solicitor, provided that the waiver was "voluntary, informed and unequivocal": Lord Hope, paragraph 17 (quoting Lord Bingham of Cornhill in Miller v Dickson 2002 SC (PC) 30.
[42] Lord Hope went on to say at paragraph 46:
"Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily."
[43] At paragraph 47, Lord Hope said that the court must be alert that the normal explanation may not be understood by everyone:
"It should not be taken for granted that everyone understands the rights that are being referred to. People who are of low intelligence or are vulnerable for other reasons or who are under the influence of drugs or alcohol may need to be given more than the standard formulae if their right to a fair trial is not to be compromised."
[44] Where the accused is particularly vulnerable, for example is a child, additional safeguards may be required: McGowan, Lord Hamilton at paragraph 76.
[45] Nevertheless, the Strasbourg jurisprudence did not lay down a general rule that access to legal advice must be afforded to all children when being questioned by police in all circumstances: Ross v HMA, paragraph 29.
[46] The Strasbourg jurisprudence can be separated into cases involving express waiver and those involving implied waiver. In the present case the issue is one of express waiver.
[47] In considering the validity of the waiver, it is necessary to look at the whole facts and circumstances in each case. In particular, the presence of a form purporting to evidence of waiver of rights may not, in itself, be sufficient: Plonka, Lopata and Duman. The issue of validity of express waiver was also considered in Bortnik and Saman.
[48] While there are examples of invalid waiver of the right to solicitor access from decisions of the European Court, there is a dearth of examples of cases where the applicant is a child. In Panovits the applicant was 17 years old at the time of his arrest for murder and robbery. While the facts of Panovits are distinguishable from the present case due to the level of intimidation experienced by the applicant outwith the presence of his father, the court provided some useful indications of when a valid waiver of Article 6 rights by a child could be established: see paragraphs 67 and 68.
[49] In conclusion, there were no fixed rules on the issue of when a child can and cannot be held to have waived Article 6 rights and each case has to be judged on its own merits. The whole circumstances of each case have to be considered with particular reference to the following factors:
a. the seriousness of the allegations;
b. the importance of the right being waived;
c. the vulnerability of the individual;
d. whether the waiver was express or implied;
e. whether the waiver was voluntary;
f. whether the waiver was informed;
g. whether the waiver was unequivocal;
h. the presence of additional safeguards.
[50] The Reporter submitted that given the whole circumstances this case should be examined by the court.
Caution
[51] No submission was being made in respect of the point taken in relation to JM's understanding of the caution.
Submissions for JM
Article 6
[52] The referral proceeded under Section 52(2)(i) of the 1995 Act, namely that the child had committed offences contrary to the Sexual Offences (Scotland) Act 2009, sections 20(2)(b) and 21.
[53] In terms of section 68(3)(b) of the 1995 Act, the standard of proof required in criminal proceedings applies.
[54] The minute procedure adopted in this case was in accordance with the approach recommended in "Children's Hearings and the Sheriff Court" (Kearney, Second Edition, paragraph 37.25), although it is more akin to the manner in which such issues are resolved in solemn cases in terms of section 71, 72 and 79 of CPA95 by way of a trial before a trial.
[55] In the present proceedings, the only corroboration of the allegation made by the Complainer comes from admissions made at police interview. Accordingly, it was best that the issue of admissibility is resolved pre-proof as if resolved in favour of JM this will mean that the complainer need not give evidence at all.
[56] In Children's Hearings and the Sheriff Court, Section 52(2)(i) grounds in a proof under section 68 must be brought to the criminal standard (Kearney, paragraph 37.25; Constanda, page 223H).
[57] The exclusion of confession evidence on the grounds of unfairness does not contravention the requirement of rule 3.47(1) to hear evidence: Kennedy v B 1972 SC 128 at 133.
[58] It had been accepted by the Reporter that this was a case to which the decision in Cadder applied from which it is inferred that at the time of the interview, it is accepted that JM was "in custody". DC Anderson's unchallenged evidence that JM was, prior to questioning, detained in terms of section 14 of CPA95.
[59] There is no dispute on the evidence that JM was interviewed outwith the presence of a solicitor and where he had not been given any legal advice prior to that interview. JM was aged 12 years at the time of the interview. He was to be interviewed in relation to serious criminal allegations. The issue between the parties in relation to the access to legal advice issues is this: did JM validly waive his right to legal advice?
[60] The starting point is to examine the evidence. Firstly, it should be noted that the evidence of the police was that when JM was detained, X did nothing.
[61] No great significance could be attached to the evidence of DC Slessor. She was there to corroborate the evidence of DC Anderson. She was asked in general terms about what had been discussed. She gave no detailed evidence as to what these "discussions" were; what the Custody Sergeant did; or the events surrounding the completion of the SARF form.
[62] DC Anderson was a more significant witness. In evidence in chief, she said that JM was 12 and was a "young child". She then gave evidence of the three stages, namely what happened in the witness room, at the Charge Bar and in the interview room.
[63] It was clear from her evidence that any discussions that she had which prompted an answer in relation to solicitor access were discussions with X.
[64] We do not know exactly what was discussed in the witness room. It was not recorded anywhere and there is no written or other record of it.
[65] We know that JM and X were never left alone together at any stage. At the Charge Bar, we know that JM was asked about 12 questions by the Duty Sergeant.
[66] The SARF procedure was followed but did not go beyond the wording on the form. DC Anderson said that she read out the bits printed in bold.
[67] DC Anderson also said that when X asked whether they needed a solicitor her response was that the decision regarding solicitor's access was JM's.
[68] Part two of the form was completed after X's question. No reason was recorded for the declinature of solicitor access.
[69] Turning to matters of law, it was submitted that JM did not validly waive his right to legal advice and, accordingly, the interview is rendered inadmissible by dint thereof, on account of his age and lack of understanding of what was being asked of him and the consequences thereof.
[70] The starting point is McGowan. The issue in that case was whether a suspect in a "Cadder situation" required to be given access to legal advice in relation to waiver. The court made an observation on what constitute validity: paragraphs 46, 48, 49, 66, 67, 68, 69, 70, 75, 76, 92, 93, 94, 95, 96, 100, 101, 102.
[71] Particular attention should be paid to the comments on Panovits at paragraphs 66-68 and 71-73. The police did nothing to take account of JM's age and vulnerabilities in accordance with the principles set out in these paragraphs.
[72] The legal requirements in McGowan, in so far as relevant here, are set out in the ACPOS manual at sections 4 and 16 - to which, it will be observed, DC Anderson had no regard. The police, by their own admission, ignored this guidance. The presumption in paragraph 16.4 was ignored; every effort was not made in a case where access to legal advice should simply have been afforded: McGowan, paragraph 94.
[73] McGowan was further recently considered in Birnie at paragraph 16. The comments in Birnie about the reason for the waiver are relevant to that case only.
[74] The simple point here was that the police left the question of waiver for JM. But that is a question that should never have been left to him. He had a no idea what a solicitor was; nor an informed grasp of the consequence of refusing access to a solicitor.
[75] There may be cases involving a vulnerable person (for example, a child of sufficient maturity) where the presence of an "appropriate adult" would be sufficient.
[76] But the decision as to what is appropriate in any one case involves a proper assessment of what happened in the run up to the waiver being granted - and in particular an analysis of the "reason why" any waiver was being granted. In the present case, the child did not give a valid waiver as he did not understand the consequences.
[77] If the ACPOS guidance had been followed then the position would have been clear.
[78] JM did not understand the implications of his waiver. If the appropriate questions had been asked - particularly about the reason why he was waiving his rights - alarm bells would have rung and the appropriate action would have been taken, namely the presumption to afford access to legal advice would have followed.
[79] The presence of X throughout did not advance the Reporter's case. He did nothing beyond his presence. There was no proper discussion between JM and X at any stage or proper communication between them.
The caution
[80] On the evidence, JM did not understand the caution administered to him at the start of the interview. It followed that the interview was unfair and consequently inadmissible: McGowan, paragraph 47; LB v HMA 2003 JC 94, paragraph 12.
Submissions for M
[81] The submissions for JM were adopted.
[82] Further, it was submitted that X's presence was not appropriate in the sense that he was not an appropriate person. In a case such as this, a parent was not an appropriate person. It should have been a different appropriate adult. This was a 12 year old child being asked questions about sexual acts. Given that context, the presence of a parent was not an appropriate safeguard. That meant that JM was operating under a form of incapacity.
[83] In any event, X had just been advised that JM had allegedly committed a sexual offence. It was clear that X played no role whatsoever in the proceedings.
[84] The Reporter's position was that X was there to provide parental guidance. But it was clear that appropriate parental guidance would have been to cooperate with the police by answering questions - which is what he did.
[85] X did not even ask what the charges were. This was surprising. Neither JM nor X knew of the nature of the charge until the end of the police interview.
[86] Reliance was placed on HMA v Milligan.
Submissions for J
[87] The submissions of Mr Anderson and Mr Mallon were adopted.
Submissions for safeguarder
[88] Mr Dunbar adopted a neutral position and made no submissions.
Reply for Reporter
[89] None.
Grounds of decision
The evidence
[90] There was little dispute about the evidence or facts. DC Anderson gave a full account of what had happened case and most of the findings in fact set out above are derived from evidence which she gave both in examination in chief and in cross-examination. In my opinion, no issues of credibility arise in respect of her evidence; nor are there any material questions of reliability.
[91] JM's evidence was much more limited in scope. There are no issues of credibility. However, it appeared to me that he did not have a clear recollection of much of the detail of what had happened on the day of the interview. He remembered being in the witness room initially with X and DC's Anderson and Slessor and that there had been "general talking" about how school was and what he had been doing. He did not remember anything else that was spoken about then. He could not remember if the "policeman in uniform" (the Custody Sergeant) had asked him any questions.
[92] There was one area of dispute between the evidence of DC Anderson and JM. DC Anderson's evidence was that it was X who had answered the question about a private consultation with a solicitor prior to interview and that there had been no audible response from JM, whereas JM said that it was he who had said "No". When that was put to DC Anderson, she said she could not remember that. On balance, I have concluded that it is more likely that DC Anderson's recollection is correct, as she appeared to have a clearer memory of events. Even if I am incorrect about that, for reasons which I shall endeavour to explain, I do not think that it matters.
Article 6
[93] This case raises a significant point in an important point area of the law.
[94] I begin by focusing the issue by examining it by reference to the eight factors identified by the Reporter.
a. Nature of allegations: these were of a serious nature. Thus, there is a balance to be struck between, on the one hand, the public interest in these allegations being investigated properly by the authorities and the potential consequences for a suspect on the other.
b. The importance of the right being waived: access to legal advice is an important right.
c. The vulnerability of the individual: on any view, JM was vulnerable on account of his age.
d. Express or implied waiver: the waiver in this case was ostensibly express.
e. Voluntary waiver: leaving aside the issue as to whether a waiver can be said to be voluntary when the person granting it does not understand the nature of the right being given up or the possible consequences thereof, the waiver was voluntary in the sense that no undue (i.e. unlawful) pressure was applied to JM.
f. Whether the waiver was informed: this is a critical issue in this case which I attempt to deal with below.
g. Whether the waiver was unequivocal: on the face of it, the waiver was unequivocal.
h. The presence of additional safeguards: the main additional safeguard was the presence of JM throughout. The adequacy of this as a safeguard is also discussed further below.
Discussion
[95] Mr Anderson invited me to conclude that JM's waiver was not an informed one and thus could not be valid. I say at the outset that I have found this a difficult case to resolve. However, after anxious consideration, I have concluded that the approach which I was invited to take by Mr Anderson would be to look at matters in too narrow a way. It is important to remember that in determining questions about the validity of the waiver, it is the whole (relevant) circumstances which matter. In my view, the approach of Mr Anderson (and of Mr Mallon) is incorrect in that I was effectively invited to attach no weight to the presence and role of X. In my view, to do that would be to ignore a material factor or circumstance.
[96] I note that X was advised of the nature of the enquiry when DC Anderson telephoned him to arrange the interview. It appears that he had some prior knowledge that the matter was in the hands of the Police. The SARF procedure was explained, along with a reference to the right to legal representation. At the Police Office itself, the right to legal representation was explained three times (interview room; Custody Sergeant; SARF). It was reiterated that the matter was serious. JM was successively (i) detained (ii) cautioned and (iii) charged. X (and JM) may not have known of the precise charge, but in my view, it must have been apparent to X (and JM) from the foregoing that the matter was serious.
[97] Both JM and X were told to ask questions at any stage if they did not understand. In the absence of questions, even if the Police were not entitled to assume that JM understood what was being said to him, they were, in my opinion, entitled to assume that X understood.
[98] As I understood it, Mr Anderson's position was that because, as a matter of fact, JM did not understand (this being based on his own unchallenged testimony and exemplified by his ignorance of the meaning of the word 'solicitor'), the Court should conclude that he did not have an adequate appreciation of the significance or consequences of ostensibly giving up the right to speak to one.
[99] But DC Anderson's unchallenged testimony was that she had explained to JM that the word solicitor meant "lawyer". JM was not asked in evidence if he knew what a "lawyer" was. In addition, JM had also been told to ask if he did not understand. He did not ask any questions.
[100] In any event, it appears to me that it is necessary to take account of the actual and constructive knowledge of X. He is an adult. As such he would be capable of giving a valid waiver on his own behalf (assuming the necessary preconditions were present). As already noted, he had been told about the right of access to a solicitor several times before the interview began. He knew the matter was serious.
[101] There is no actual evidence of his actual state of knowledge as he did not give evidence. But his affirmative answer to the question "You have the right to have a solicitor informed of your detention. Do you wish a solicitor advised of your detention?" suggests strongly that he knew what a solicitor was.
[102] This conclusion is also supported by the exchange which occurred in relation to the question "You also have the right for (sic) a private consultation with a solicitor before being questioned by the police and at any other time during questioning. Do you wish a private consultation with a solicitor before you are questioned?".
[103] The reply - in the form of the question "Do we need one?" - indicates an understanding of the word and an appreciation of the role of a solicitor.
[104] Mr Anderson was critical of the decision to impose the decision about waiver on JM's shoulders. He based this on DC Anderson's evidence that (i) the questions relevant to waiver had been directed at JM and (ii) in her mind the question of waiver was for JM. But in my view, to take such an approach would be to ignore what actually happened.
[105] As already noted there was a dispute as to whether JM or X answered "No" to the second question: see Paragraph [92]. My conclusion was that on the balance of probabilities, JM said nothing audible and X said "No, we don't want one at this time". But even if I am wrong, and JM did (as he said in evidence) say "No" , DC Anderson's undisputed evidence was that X said "We don't want one at this time". Either way, against the background of the information provided and the communication - albeit brief - between JM and X, it appears to me that the words "...we don't want one at this time" were capable of amounting to a valid waiver given on behalf of JM.
[106] In her evidence, DC Anderson said that she had explained to JM and X that X could not answer questions on JM's behalf but was there to make sure JM understood the questions: Paragraph [9]. I took this to be a reference to questions posed about the allegations themselves, rather than questions which might arise about the procedural aspects. This interpretation of her evidence is supported by the fact that she appears to have accepted X's response about not wanting access to a solicitor: Paragraphs [25] and [27]. Looked at in that way, it is clear that X played an active role in the decision to grant a waiver - and that was a role which was accepted by the police officers.
[107] Adopting Mr Anderson's turn of phrase, the evidence shows that the question of waiver was not put on JM's unsupported shoulders.
[108] In my opinion, it was necessary only that X understood that a lawyer might be able to provide assistance at the interview stage which might be of benefit to JM: McGowan, para [70]; Panovits, 483[b]. It must have been obvious to X that JM was being offered access to a consultation with a lawyer before the interview and that if he waived that right, the interview would proceed without a lawyer present.
[109] I recognise that that conclusion begs the question as to whether a 'waiver' given in such circumstances (i.e. by an appropriate adult ostensibly on behalf of a child) can be valid and it is to that issue which I now turn.
[110] Section 4 of the ACPOS Guidance[1] 4 warns that 'the greatest of care must be taken if the suspect wishes to waive [the right of access to a solicitor]'. The advice given is that certain key questions must be asked in each case and this is reflected in the content of the SARF form. In my opinion, the evidence of the procedure adopted (in particular repeated explanations as to the seriousness of the matter; what was going to happen; and JM's rights to legal advice) show that care was being taken.
[111] Section 16 provides as follows:
"16. Children and vulnerable adults
...16.3 The test of our approach to the rights of children...will include if the individual's rights were fully explained and understood, and if any waiver of rights was an 'informed waiver'."[my emphasis].
[112] On Mr Anderson's approach, the absence of actual understanding on JM's part would be fatal to the Reporter's position. As I have already indicated, I do not agree. It appears to me that although technically the waiver was JM's to grant or withhold, there is no reason in principle why a valid waiver could not be given on his behalf by M in his role as an appropriate adult. I derive some support about the role of a parent and the concept of a valid waiver being given by a parent from Panovits 483(e) ("...on his behalf...) and 484 (c) - (e) ("...addressing his father..."; "...nor his father..."; "...guardian...").
[113] It is true that the reason for the waiver being given was not established or recorded. But in my view, the law does not require the establishing of the reason why, where the suspect (i) is not a vulnerable person or (ii) is a vulnerable person but other adequate safeguards are present (such as the presence of an appropriate adult): McGowan, paras. 48 - 50 and 59 ; Birnie, para [16].
[114] I accept that there may be cases involving a vulnerable person who is a suspect where it will simply not be appropriate to seek a waiver because it would be impossible to obtain a valid one. I do not think that this is such a case. In particular, it seems to me that the younger the child, the easier it is to argue that a waiver given (by an appropriate person) on behalf of that child is a valid one.
[115] In relation to Mr Mallon's point, I do not think that X was not an appropriate person. I heard no evidence to support the view that he was not capable - for whatever reason - of playing an appropriate "parental" role. In the case of HMA v Milligan, the accused was mentally ill (paranoid schizophrenia) and had a mild learning disability. The investigating officer excluded the accused's lawyer from the interview as he was entitled to do under Section 14 CPA95. The accused wanted his lawyer present and became distressed. The Sheriff was somewhat critical of the role played by the 'appropriate adult' and suggested that such persons should, when assisting a vulnerable suspect, have at least a basic knowledge of the rights of the suspect. In my view, the facts of that case are distinguishable and do not relate to the issue in this case, namely waiver pertaining to solicitor access prior to interview.
[116] In the whole circumstances, I have concluded that waiver granted in this case was valid and that the leading of the evidence obtained at the interview would not infringe JM's Article 6 rights to a fair trial.
Caution
[117] Mr Anderson submitted that it was proved on JM's unchallenged evidence that he had not understood the caution and that it followed that the interview was unfair.
[118] In my view, there are two difficulties with this proposition.
[119] Firstly, my note of JM's evidence (after he had viewed the relevant section of the DVD, Production R1) was that he agreed that he was asked (during the interview) about the caution; that he had nodded; that he could not say what it meant; he did not know what it meant; he was unsure. When he was pressed to provide some kind of explanation as to his understanding of the caution, he said: "If I admit to anything, she can use it as evidence." Accordingly, it appears to me that JM did understand the caution, at least in general terms.
[120] Secondly, the argument appears to me to require that the evidence as to the surrounding circumstances be ignored. The caution is in simple terms. In particular, X was present and the caution was administered in his presence; neither he nor JM said that they did not say to they did not understand, despite being told to ask if he did not understand anything. On the contrary, JM indicated his assent by nodding.
[121] It appears to me that the critical issue here is one of fairness. I can detect no unfairness in the administering of the standard caution.
Disposal
[122] Both grounds of objection set out in JM's Minute are repelled. It follows that I hold that the evidence obtained from the interview is admissible.
[123] As parties know, it has already been arranged that the case will call before me on 7 June so that further procedure can be discussed.
Footnote
[124] I am very grateful to both the Reporter and Mr Anderson for their written submissions which made the job of considering this anxious case easier than it would otherwise have been.
[125] I have a residual concern about the time these proceedings have taken already. The events giving rise to the police investigation occurred 16 months ago and the referral proceedings began in November 2011. No doubt there are reasons why it has taken so long to come to proof but it is a matter unsatisfactory, on any view, that it has taken so long. I cannot leave this topic without touching on the question of the DVD evidence. I say only this - any party seeking to utilise DVD evidence at a hearing must take steps in advance of that hearing to ensure that (i) the appropriate equipment is available in the Court and (ii) the DVD to be relied on will play properly on it.
(sgd.) "K J McGowan"
Sheriff
Note: this decision has been appealed to the Court of Session by Stated Case