Matthew McCann v. Her Majesty's Advocate [2013] HCJAC 29

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to Airdrie Sheriff Court on a charge of assault and robbery whilst on bail and an associated breach of curfew. At a continued first diet on 7 February 2012 the appellant lodged a preliminary issue minute and raised an associated devolution issue both relating to the appellant's police interview on 27 November 2010. Before the sheriff it was contended that the appellant's decision to waive his right to a consultation with a solicitor prior to being interviewed was not made on an informed basis and denied him the right to a fair trial. Specifically, it was argued that:- (1) the appellant was 16 years and 41 days old at the time of his detention and interview; and (2) he was under the influence of valium at that time. Following the leading of evidence the sheriff held that the interview had been fairly conducted. The appellant appealed and it was submitted that the sheriff erred in concluding that the appellant had validly waived his right to legal advice as:- (a) the appellant fell to be treated as a child; (b) the police officer's views of his intellectual capacity; (c) the fact that the appellant did not have access to legal advice; (d) the fact that he had not been informed that he could seek legal advice at any time during the interview; and (e) the absence of any obvious reason why the appellant would want to waive such rights. On behalf of the Crown it was submitted that the sheriff had found in fact that the appellant had known what he was doing and the mere fact that he was 16 was not of itself sufficient to mean that could not waive his right of access to a lawyer. Here the court considered the issue of valid waiver in the context of a 16 year old with limited intelligence and whether the appellant, as a matter of fact, unequivocally waived his right of access to a lawyer.