HER MAJESTY'S ADVOCATE v. LEE JOHN McCANN and WILLIAM SOMERVILLE [1999] ScotSC 21 (19th July, 1999)

HER MAJESTY'S ADVOCATE v. LEE JOHN McCANN and WILLIAM SOMERVILLE [1999] ScotSC 21 (19th July, 1999)

The act of the Lord Advocate in bringing an indictment and proposing to adduce evidence obtained from police interviews without advising the accused of the right to have a solicitor present does not, in itself, constitute an act incompatible with Article 6 ECHR under section 57(2) of the Scotland Act 1998. The admissibility of such evidence is a matter for the trial court to determine according to the test of fairness under Scots law, and no devolution issue arises at this preliminary stage.

Citation
[1999] ScotSC 21
Parties
Prosecutor: Her Majesty's Advocate; Accused: Lee John McCann; Accused: William Sommerville
Jurisdiction
Scotland
Procedural Posture
Criminal / Pre Trial Motion Regarding Admissibility of Evidence
Outcome
Application refused
Legal Topics
Admissibility of Evidence, Right to Fair Trial, Devolution Issues, Police Interviews, Legal Representation, Scotland Act 1998, Human Rights Act 1998, European Convention on Human Rights
Criminal Law Constitutional Law Human Rights Law Admissibility of Evidence Right to Fair Trial Devolution Issues Police Interviews Legal Representation +3 more

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Parties

Her Majesty's Advocate

Prosecutor

Lee John McCann

Accused

William Sommerville

Accused

Procedural Posture

Criminal / Pre Trial Motion Regarding Admissibility of Evidence

Legal Issues

  1. 1 Whether the Lord Advocate's act of bringing an indictment and proposing to adduce evidence obtained from police interviews without advising the accused of the right to have a solicitor present is incompatible with Article 6 of the European Convention on Human Rights and thus incompetent under section 57(2) of the Scotland Act 1998; whether such incompatibility renders the evidence inadmissible at trial as a devolution issue.

Ratio Decidendi

The act of the Lord Advocate in bringing an indictment and proposing to adduce evidence obtained from police interviews without advising the accused of the right to have a solicitor present does not, in itself, constitute an act incompatible with Article 6 ECHR under section 57(2) of the Scotland Act 1998. The admissibility of such evidence is a matter for the trial court to determine according to the test of fairness under Scots law, and no devolution issue arises at this preliminary stage.

Court Disposition

Application refused

Orders

  • The motion to rule the police interview evidence inadmissible as a devolution issue is refused. The question of admissibility and fairness of the statements remains open for determination at trial.