Barry McLean v. His Majesty’s Advocate [2023] HCJAC 16

Note of appeal under section 74(1) of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to a First Diet on 25 May 2020 at Ayr Sheriff Court in relation to various charges relating to indecent images. The appellant lodged a Minute in terms of section 71 of the 1995 Act objecting to the admissibility of prospective testimony from police officers about what the appellant had said when he was asked to provide the password for a Macbook Pro laptop computer and a PIN for a Samsung mobile phone which requests had been made by the police in the course of the execution of a search warrant for a house occupied by the appellant, his parents and other members of his family. It was contended that the appellant had been a suspect and ought to have been afforded the rights of a suspect including access to legal advice. Having heard evidence relative to the objection, the objection was repelled and the appellant appealed against that decision. Here the court refused the appeal. The court noted that the PIN was volunteered when he was under no pressure to so so. The court also observed that in the event that legal advice had been provided, resulting in a refusal to provide the PIN, the phone would have been seized and transmitted to the cybercrime unit’s laboratory where the security would probably have been overcome anyway. The court also observed that in the event it was not, the police would have been entitled to serve a notice under section 49 of the Regulation of Investigatory Powers Act 2000 to require disclosure of the PIN and failure to comply with that requirement would be an offence which carried with it the potential for a significant prison sentence. In these circumstances the court was not persuaded that the result of obtaining legal advice would have been that the images would not have been recovered, that there was no unfairness and the evidence objected to was deemed admissible. The court reiterated that the police are entitled to make requests outwith the confines of the police office which are not designed to elicit an incriminating reply to a charge but to progress their inquiries.