Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
Waiver6.1.41 The European Court has stated clearly that Article 6 rights can be waived. Ithas said that 39 :“Neither the letter nor the spirit of Article 6 prevents a person fromwaiving them [Convention rights] of his own free will, either expresslyor tacitly”.6.1.42 But for a person to do so: (1) the waiver must be unequivocal; (2) there mustbe minimum safeguards commensurate with the importance of the right beingwaived; and (3) the waiver must not go against any important public interest 40 .The person waiving an Article 6 right must understand that right andappreciate that he/she is waiving it 41 . For such a right to be waived by aperson’s course of conduct, it must be shown that the person could reasonablyhave foreseen the consequences of that conduct 42 . Accordingly, if a personhas requested access to a lawyer, the fact that he/she then answers policequestions in advance of the solicitor’s attendance or call does not necessarilyconstitute waiver of the right to legal advice. The Court has applied asubjective test which looks at whether the particular suspect can be seen, in theparticular circumstances, to have waived his/her rights. Some suspects willnot have the capacity to understand the right of access to a lawyer and willthereby be unable to waive that right. This can apply particularly to child andvulnerable adult suspects. But otherwise there must be a limit to what the39 Scoppola v Italy (No.2) (2010) 51 EHRR 12 at para 13540 ibid see also Pishchalnikov v Russia 24 September 2009 (no 7025/04) at para 7741 Jude v HM Advocate 2011 SCCR 300, currently awaiting judgment on appeal by the Lord Advocateto the United Kingdom Supreme Court42 Talat Tunk v Turkey (no 2343/96), 27 March 2007; Jones v United Kingdom (2003) 37 EHRR (CD)269164
Convention jurisprudence requires by means of an effective expression ofwaiver.6.1.43 The 1995 Act, as amended by the 2010 Act, makes no express provision forwaiver of the right of access to a lawyer. But, as is clear from the aboveanalysis of the Convention jurisprudence, there is nothing to prevent a personwaiving his/her right and this is frequently done 43 . The procedure in relationto waiver used by the police in practice is set out in the ACPOS ManualGuidance on Solicitor Access. It provides 44 :“Waiver of rightsWhere a suspect chooses to waive their (sic) rights to solicitor accessand/or their right to a private consultation with a solicitor, this must berecorded on the Solicitor Access Recording Form (SARF), and shouldbe referred to at the start of any interview and also recorded in theStandard Prosecution Report. The suspect will be required to sign awaiver of their rights on SARF A (attached at Appendix B)…Suspect’s change of decision or change of statusPolice officers and staff are reminded that individuals have the right toaccess advice from a solicitor at any time during which they remainsuspects. This means they may ask at any time for advice from asolicitor, even if they have previously indicated they did not wish theadvice of a solicitor. Where suspects change their mind about theexercising of rights this must be accurately recorded on the SARF Aand SARF B (attached at Appendix C) and reference made in theStandard Prosecution Report.”6.1.44 ACPOS statistics reveal that approximately 75% 45 of suspects waive theirright of access to a lawyer. The precise reasons for this are not known, but thecircumstances will include situations where the suspect is familiar with theprocedures and may not require, or may not think he/she requires, legal advice43 see ACPOS Solicitor Access Data Report, 23 June 2011, at p 844 at paras 3.4.1 and 3.5.145 see ACPOS Solicitor Access Data Report (supra) at p 7. The figure is higher in rural than urbanareas and is lowest in the Strathclyde police area (approx 73-74%)165
- Page 116 and 117: 5.2.29 Continuing with the custody
- Page 118 and 119: 5.2.32 The sheriffs principal and s
- Page 120 and 121: jurisdictions where judicial or oth
- Page 122 and 123: where they are uncertain of what th
- Page 124 and 125: 122
- Page 126 and 127: The grounds for arrest and initial
- Page 128 and 129: procurator fiscal consider that the
- Page 130 and 131: the standard bail conditions and, i
- Page 132 and 133: prudent, therefore, to constrain an
- Page 134 and 135: to challenge any conditions before
- Page 136 and 137: ⎯ the exercise of the powers to l
- Page 138 and 139: the nature and scope of police ques
- Page 140 and 141: suspect the right of access to an a
- Page 142 and 143: involving the suspect having inform
- Page 144 and 145: 6.1.3 It was essential that the Rev
- Page 146 and 147: 6.1.7 In Ireland 7 , a suspect in c
- Page 148 and 149: lawyer at that stage, although the
- Page 150 and 151: detained suspect must have prompt a
- Page 152 and 153: interview. That is the general posi
- Page 154 and 155: doubt remain dependent upon the sta
- Page 156 and 157: of non-qualified persons posed a pr
- Page 158 and 159: eing interviewed, or otherwise hind
- Page 160 and 161: proportionate. If a conflict does o
- Page 162 and 163: 6.1.36 In England and Wales, resear
- Page 164 and 165: context and returning to the genera
- Page 168 and 169: until shortly before his/her attend
- Page 170 and 171: ⎯ the right of access to a lawyer
- Page 172 and 173: and whether there is sufficient evi
- Page 174 and 175: the degree of suspicion, and to adv
- Page 176 and 177: is detained 7 . Regardless of wheth
- Page 178 and 179: at the diet of trial to exclude his
- Page 180 and 181: police elect, for whatever reason,
- Page 182 and 183: sense, are inadmissible if objected
- Page 184 and 185: the suspect’s right to silence an
- Page 186 and 187: and reliable, e.g. to clear up ambi
- Page 188 and 189: “would have such an adverse effec
- Page 190 and 191: 6.2.38 As noted above, section 78 o
- Page 192 and 193: ensure that reasonable lines of enq
- Page 194 and 195: determining fairness in certain cas
- Page 196 and 197: permission to do so. The applicatio
- Page 198 and 199: hour maximum detention period, in a
- Page 200 and 201: incrimination. It should be specifi
- Page 202 and 203: accused’s first appearance on pet
- Page 204 and 205: 202
- Page 206 and 207: Current law6.3.4 For the purposes o
- Page 208 and 209: to a Hearing or prosecuted in court
- Page 210 and 211: ight of access to the child, subjec
- Page 212 and 213: Constabulary on the conditions in w
- Page 214 and 215: he/she has a specific right to “p
Waiver6.1.41 The European Court has stated clearly that Article 6 rights can be waived. Ithas said that 39 :“Neither the letter nor the spirit of Article 6 prevents a person fromwaiving them [Convention rights] of his own free will, either expresslyor tacitly”.6.1.42 But for a person to do so: (1) the waiver must be unequivocal; (2) there mustbe minimum safeguards commensurate with the importance of the right beingwaived; <strong>and</strong> (3) the waiver must not go against any important public interest 40 .The person waiving an Article 6 right must underst<strong>and</strong> that right <strong>and</strong>appreciate that he/she is waiving it 41 . For such a right to be waived by aperson’s course of conduct, it must be shown that the person could reasonablyhave foreseen the consequences of that conduct 42 . Accordingly, if a personhas requested access to a lawyer, the fact that he/she then answers policequestions in advance of the solicitor’s attendance or call does not necessarilyconstitute waiver of the right to legal advice. The Court has applied asubjective test which looks at whether the particular suspect can be seen, in theparticular circumstances, to have waived his/her rights. Some suspects willnot have the capacity to underst<strong>and</strong> the right of access to a lawyer <strong>and</strong> willthereby be unable to waive that right. This can apply particularly to child <strong>and</strong>vulnerable adult suspects. But otherwise there must be a limit to what the39 Scoppola v Italy (No.2) (2010) 51 EHRR 12 at para 13540 ibid see also Pishchalnikov v Russia 24 September 2009 (no 7025/04) at para 7741 Jude v HM Advocate 2011 SCCR 300, currently awaiting judgment on appeal by the Lord Advocateto the United Kingdom Supreme Court42 Talat Tunk v Turkey (no 2343/96), 27 March 2007; Jones v United Kingdom (2003) 37 EHRR (CD)269164
Change language