APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Emslie Lord Marnoch	[2011] HCJAC 67 Appeal No: XC117/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by DUNCAN McLEAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, MacDonald; Drummond Miller

Respondent: Bain, Q.C., A.D.; Crown Agent

8 July 2011

The procedural history
[1] On 21 July 2008 a motor vehicle being kept at Muir Garage, Edzell was deliberately set on fire. The vehicle was destroyed. Within two days James MacKinnon, who had suffered facial burns as a result of this event, was identified as the person who had set the fire. Having been cautioned he was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. In the course of a journey by police car to Arbroath Police Station MacKinnon volunteered that the appellant had paid him £100 to set the vehicle alight.

[2] In the early hours of 23 July 2008 the appellant was detained under section 14 of the Act and interviewed under caution. In the course of that interview he made certain self-incriminating remarks.

[3] The police also gathered certain further evidence incriminating the appellant. That comprised text messages, recorded on MacKinnon's mobile phone, passing between the appellant and MacKinnon preliminary to access being gained by the latter to the garage. These messages pointed clearly to the appellant's involvement in the criminal enterprise. The police also obtained a statement from Sarah MacKinnon, a sister of MacKinnon, to the effect that the appellant was to provide another (stolen) vehicle to MacKinnon as consideration for his assistance in the fire-raising. That statement was consistent with the content of the text messages.

[4] MacKinnon was indicted on a charge of wilful fire-raising which "destroyed a motor vehicle, garage equipment and damage to garage premises". On 12 February 2009 he pled guilty pursuant to a section 76 indictment libelling that charge. The appellant was subsequently indicted on charges of (1) theft (of the vehicle to provide the consideration) and (2) wilful fire-raising in the same terms as that to which MacKinnon had pled guilty. MacKinnon and his sister appeared in the list of Crown witnesses scheduled to that indictment. A first diet was fixed for 17 March 2009, continued to 24 March 2009 and further continued to 9 April 2009.

[5] On 27 March 2009 the appellant's solicitor lodged a devolution minute in which he contended that the leading of evidence in relation to the police interview (which had taken place without the appellant having the benefit of legal advice) would be contrary to his rights under article 6(3)(c) of the European Convention on Human Rights. Having heard parties in debate on 6 April, the sheriff decided to refer the devolution minute, as adjusted, to the High Court for determination. That reference was finally heard by a bench of seven judges of that court on 20 and 21 October 2009. On the latter date the court announced that it would direct the sheriff to refuse the devolution minute, holding in effect that the content of the interview was not inadmissible on Convention grounds. The court stated that it would give its written reasons for that decision in due course. Before the court adjourned counsel for the minuter (the present appellant) sought leave to appeal that decision to the United Kingdom Supreme Court. Counsel recognised, however, that that application might be premature since the full reasons for the court's decision were not yet available. The court continued the application for leave to appeal. It remitted the case to the sheriff court for trial.

[6] Before the court's reasons were issued (and before the application for leave to appeal had been disposed of) the case called in the sheriff court on 7 December 2009. The appellant's solicitor formally moved the devolution minute but, having regard to the decision of the High Court, the sheriff refused it. Thereafter the appellant, being personally present and having the services of a solicitor, immediately offered to plead guilty in restricted terms to the indictment. The restrictions were the acceptance by the Crown of a plea of not guilty to charge (1) (the theft charge) and the restriction of charge (2) by deletion of the references to destruction of garage equipment and damage to the garage premises (so limiting the consequences of the fire-raising to the destruction of the motor vehicle). The procurator fiscal accepted that restricted plea, which was duly recorded. The case was continued for the preparation of reports. On 14 January 2010 the procurator fiscal presented to the sheriff a narrative of the circumstances of the offence. There was a challenge to one aspect of that narrative but that issue was subsequently resolved. On 29 January the sheriff had before him a social enquiry report which included the statement: "Mr McLean takes full responsibility for his behaviour in relation to the index offence ...". On that date the sheriff sentenced the appellant to twelve months' imprisonment, discounted by reason of his plea of guilty.

[7] Thereafter in February 2010 the appellant, notwithstanding his plea of guilty, lodged a note of appeal against both conviction and sentence. Leave to appeal against sentence was refused. After the decision of the Supreme Court in Cadder v HM Advocate 2010 SCCR 951 was issued, leave to appeal against conviction was granted. After sundry procedure the appeal called before us for hearing. The court had at no stage been asked to determine the application for leave to appeal to the Supreme Court its decision intimated on 22 October 2009, notwithstanding that its reasons were issued on 15 December of that year.

The submissions of parties

[8] In his note of appeal the appellant contends that the Lord Advocate, acting through the procurator fiscal, in two respects acted ultra vires: (1) in raising the indictment against the appellant and (2) in accepting his restricted plea of guilty. He also contends that, in light of the Supreme Court's decision in Cadder, the decision of the sheriff to refuse the devolution minute was wrong in law. In these circumstances it is said that there has been a miscarriage of justice.

[9] Mr Shead submitted that in indicting the appellant and in subsequently accepting his plea of guilty in restricted terms, the procurator fiscal had relied to a material extent on the appellant's responses at police interview. These responses had been obtained in contravention of the appellant's Convention rights (Cadder). Accordingly, at each stage the Lord Advocate, through the procurator fiscal, had acted beyond her powers. There was no question of the appellant having waived any right. When he had pled guilty, the ruling authority was the decision of the High Court in McLean v HM Advocate 2010 SCCR; at that stage he had no appreciation of any right to object to the use of the police interview. A waiver of a right must not only be voluntary but must also "constitute a knowing and intelligent relinquishment of a right" (Pishchalnikov v Russia [2009] ECHR 1357, at para 77). Reference was also made to Millar v Dickson 2001 SCCR 74, especially per Lord Bingham of Cornhill at para [27]. It was sufficient that the tainted evidence had been used by the prosecutor (Pishchalnikov, at para 90). If, contrary to the appellant's primary contention, it was necessary for him to rely on domestic jurisprudence, reliance was placed on Pickett v HM Advocate 2007 SCCR 389 for the circumstances in which, notwithstanding a plea of guilty had been tendered and accepted, a miscarriage of justice might have occurred. The plea had been tendered on the erroneous basis that the decision in McLean was good law. The appellant had been uninformed as to his true right, namely, to challenge the use against him of the police interview. The circumstances were "clearly prejudicial" to him (Healy v HM Advocate 1990 SCCR 110).

[10] The Advocate depute accepted that, in light of the subsequent decision of the Supreme Court in Cadder, the responses elicited from the appellant at the police interview were susceptible to challenge as inadmissible evidence against him. But it was not ultra vires for the Lord Advocate to indict an accused person on the basis of evidence which might in the course of the proceedings be held, if challenged, to be inadmissible. This was not a case in which the whole of the evidence available to the Crown was challengeable on Convention grounds or otherwise. Leaving aside the responses at police interview, the other evidence was sufficient in law to base a conviction. Quite apart from MacKinnon, McKinnon's sister and the text messages, there was other circumstantial evidence available to the Crown. It was clear that the appellant had, in pleading guilty, had the benefit of legal advice. There was no suggestion that that advice had been negligent. By tendering the plea the appellant accepted responsibility for his conduct. It was open to the Crown to accept that plea even if the evidence which it would or might have relied on at any trial was challengeable on Convention or on other grounds. A plea of guilty could be accepted by the Crown even if it had (for example, at a first appearance on petition) only a single source of incriminatory evidence against the accused. If the evidence was challenged, or perceived to be susceptible to challenge, the Crown could always re-group and rely on other evidence. In this case the appellant had, in his plea in mitigation, relied on his responses at police interview as an early admission of guilt and so obtained the benefit of a discount in sentence. A plea of guilty was quite different in character from the waiver of any right. Millar v Dickson was distinguishable. There was no justification for quashing this guilty plea.

Discussion

[11] At the stage of drawing an indictment a number of sources of evidence may be available to the prosecutor. One or more of these sources may be potentially open to challenge, but under our procedures any such challenge will fall to be resolved by Crown concession or, failing that, by a formal court ruling in due course. A decision to indict is not at common law invalid because one of the sources of evidence on the basis of which the decision was taken is later withdrawn or turns out to be inadmissible. Nor, in our view, is such a decision ultra vires because, as the law turns out, one of the sources of evidence is inadmissible against the accused on Convention grounds.

[12] In the present case the prosecutor had available to him a number of other sources of evidence quite independent of the appellant's responses at police interview. These other sources on their own were sufficient in law to justify the instruction of proceedings. If the decision in Cadder had been issued between the date of the service of the indictment on the appellant and the date of any contested trial, the procurator fiscal would have been in a position to discard the responses at police interview and rely at trial solely on the other sources of evidence. His decision to indict was not rendered ultra vires simply because, at the time that he took it, he believed that he had available to him admissible evidence from the interview and took that material into account in deciding to indict.

[13] Pishchalnikov v Russia was concerned with the admission by the court of flawed evidence at trial and the decisive reliance by the court on that evidence to convict. The same is true of Salduz v Turkey (2009) 49 EHRR 19 and of Cadder, in each of which the flawed evidence was admitted and relied on to secure a conviction. That stage was never reached in the present case. It is the use of flawed evidence to secure a conviction which renders a trial unfair.

[14] Perhaps the greatest problem facing the appellant in this case is that his conviction followed upon a formal plea of guilty. In Reedie v HM Advocate 2005 SCCR 407 Lord Justice Clerk Gill (delivering the Opinion of the Court) said at para [11]:

"A plea of guilty is a full admission of the libel in all its particulars. ... It is not a conditional admission that is subject to reconsideration in the light of a subsequent decision of the court ... In view of the conclusive nature of such a plea, it can be withdrawn only in exceptional circumstances. ...".

[15] The appellant pled guilty to the libel as restricted and by so doing, combined with his early admissions to the police (upon which he relied), obtained a discount on sentence. He was personally present and had had the advice of his solicitor. There is no suggestion that he did not have the opportunity to give full consideration to that advice before instructing the plea. That formal plea amounted to acceptance by him before the court of full responsibility for the conduct averred in the restricted charge. Unless the procurator fiscal had reason to believe that the proffered charge was false - and there is no suggestion that that was the case - he was entitled to accept that plea. At that stage sufficiency of evidence, including any question of a challenge to the admissibility of any element of it, was not a live issue. The appellant simply chose to confess his guilt. There was no reason why the prosecutor should not have accepted his plea. We can see no basis on which his act in accepting it was ultra vires.

[16] As confirmed in Reedie, a plea of guilty is not subject to reconsideration in the light of a subsequent decision of the court. Thus, the circumstance that the Supreme Court subsequently ruled that evidence elicited at a police interview without legal advice was not Convention-compliant and therefore inadmissible against an accused is no basis for holding that the plea or the conviction which proceeded from it was vitiated. Mr Shead, however, sought to rely to some extent on the nature of the advice which, he said, had been given to the appellant before he instructed his plea of guilty. No prior notice of this line had been given in the note of appeal or in the appellant's case and argument. No evidence was proffered in support of it. The Advocate depute, having been given no notice of this line, was not prepared to accept without proof the accuracy of the account. The account as articulated was imprecise. It amounted to the suggestion that in the course of advising the appellant his solicitor had stated, not merely that the tendering of the plea at this stage would attract a discount on sentence, but also that it "would not necessarily prejudice the prospect of an appeal to the Supreme Court" (against the High Court's ruling in October). It will be recalled that the appellant's counsel had sought leave to appeal that ruling to the Supreme Court and that that application had been continued. At the time when this advice is said to have been given the application had not been disposed of. We would find it very surprising if a solicitor practising in Scotland would tender any such advice. Whatever the practice may be elsewhere, there is no practice in this jurisdiction under which an accused person, having tendered a plea of guilty following a judicial ruling, can have his conviction set aside if that ruling is subsequently overturned. In any event, the advice was not that his guilty plea would be reconsidered in the event of a successful appeal to the Supreme Court but that that plea would "not necessarily prejudice" the prospect of an appeal. That clearly recognised the prospect that the appellant's plea would, for the purposes of the proceedings against him, be conclusive. The plea was ultimately tendered in that knowledge.

[17] It is clear from the passage cited from Reedie that the circumstances in which a plea of guilty will be set aside as constituting a miscarriage of justice are very limited. The cited passage continues:

"There is little scope, if any, for the withdrawal of a plea that has been tendered on legal advice and with the admitted authority of the accused."

The case of Rimmer, Petitioner 2002 SCCR 1 is there cited. Passages in the Opinions of Lord Cameron of Lochbroom at para [16] and Lord Marnoch at page 15 may have been in the court's mind.

[18] In Pickett v HM Advocate the court also cited a passage from the Opinion of Lord Justice Clerk Ross in Healy v HM Advocate in which his Lordship indicated that before the court would grant a remedy in relation to a plea of guilty which had been wrongly tendered:

"the court would require to be satisfied that there were exceptional circumstances justifying such a course. As the advocate-depute put it, it would have to be shown that the pleas had been tendered under some real error or misconception or in circumstances which were clearly prejudicial to the appellant. We are satisfied that that is the approach which must be made because it is a recognised principle of the law that there must be some finality in litigation and it would not be in the interests of justice if individuals after they had been sentenced were permitted lightly or easily to withdraw pleas of guilty which had been tendered merely by asserting that on their part there had never been any real willingness to make the plea."

The expression "circumstances which were clearly prejudicial to the appellant" is somewhat imprecise. But we are quite satisfied that the Lord Justice Clerk did not have in mind circumstances such as the present. Likewise we are satisfied that the plea, which was a restricted plea tendered on advice, did not involve any "real error or misconception".

Disposal

[19] In all the circumstances we are not persuaded that this is a case in which the guilty plea should be set aside. The appeal is refused.