Guest Blog by Super Cyan: David Miranda: Access to a Lawyer?
Guest Blog By Super Cyan @Super__Cyan
Schedule 7 (Sch 7) of the Terrorism Act 2000 is certainly a controversial provision and a complaint to the European Court of Human Rights (ECtHR) has recently been declared admissible (courtesy of @ObiterJ here). This post, however, does not deal with the complaint before the ECtHR but with Article 6 of the European Convention on Human Rights (ECHR), and even though the applicant is not disputing compliance with Article 6 the ECtHR has held before in Menesheva v Russia (Application no. 59261/00  ECHR 756 (at para 91)) that ‘[a]lthough the applicability of Article 6 to the administrative proceedings in question is not in dispute, the Court considers it necessary to address this issue of its own motion.’ This sometimes referred to as proprio motu(para 50) as the ECtHR (para 43) is the master of the characterisation to be given in domestic law to the facts of the case and is not bound by the characterisation given by the applicant or the Government. This could be important to clarify the law authoritatively in respect of the individual circumstances David Miranda and Sch 7 in general.
Why is Article 6 relevant? If we take note of recent events concerning David Miranda, this individual is reported to have been detained by UK authorities as he passed through London’s Heathrow airport on his way home to Rio de Janeiro. His detention lasted for around nine hours (Sch 7 6(4) permits a maximum of nine hours). He was informed that he was questioned under Sch 7. @ObiterJ’s summary is useful here as he makes clear that:
This gives an ‘examining officer’ power to question a person for the purpose of determining whether he appears to be a person falling within s40(1)(b). The officer may exercise his powers whether or not he has grounds for suspecting that a person falls within s40(1)(b). The person may be detained for questioning for up to 9 hours from the time his examination begins. Schedule 8 applies to such detention.
Hence, on its face, the authorities are empowered to detain and question a person for 9 hours regardless of whether they have any suspicion relating to that person. The questioning has to be aimed at determining whether the person is or has been concerned in the commission, preparation or instigation of acts of terrorism.
Although not the focus of this post, laws that allow the police to use powers without reasonable grounds is certainly cause for concern, see here in relation to stop and searches.
Article 6 is relevant because it was reported initially, that Miranda was questioned without a lawyer, but it has since emerged that he was offered a lawyer but refused. Sch 7, 6(3) provides that where a person is detained under this paragraph the provisions of Part I of Schedule 8 (Sch 8) (treatment) shall apply. Sch 8, 7(1) states that an individual who is detained under Schedule 7 or section 41 at a police station in England, Wales or Northern Ireland shall be entitled to request a solicitor. This is subject to qualifications set out in para 8 and 9. But Miranda was detained at Heathrow airport and not at a police station, so it is not entirely certain how Sch 8 would have any useful application, unless questioning occurred at the police station IN Heathrow, otherwise it could imply Heathrow IS police station for this purpose. Or is it that the entitlement of a solicitor can only be invoked ata police station? Why is the police station essential in this regard? This appears to be a very arbitrary way to determine when an individual’s rights may apply. Furthermore, it is not clear whether the provision is to be understood as either Schedule 7 OR section 41 at a police station rather than Schedule 7 at a police station OR section 41 at a police station. @JoshuaRozenberg believes this provision denies the right to receive legal advice, but in the admissibility decision of Malik v United Kingdom Application no. 32968/11 (2013) (para 5) the applicant who was detained under the same provisions was entitled to consult with his solicitor. In any event, going on the assumption that Sch 7 can sidestep the right of access to a lawyer, which could be the case in this specific instance because there was a removal of choice on part of Miranda. Article 6(1) stipulates that:
In the determination of…any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
Article 6(3)(c) states that:
Everyone charged with a criminal offence has the following minimum rights:…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
Article 6(1) and 6(3) can be taken together as the Grand Chamber in Sakhnovskiy v Russia(Application no. 21272/03  ECHR 1673 (para 94)) held that ‘[t]he requirements of Article 6 ¤ 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 (1), and therefore the applicant’s complaints under paragraphs 1 and 3 of Article 6 should be examined together.’
Importance here is attached to the notion of ‘criminal charge’ because not satisfying this would render Article 6(1) inapplicable. In Allenet de Ribemont v. France (Application no. 15175/89  ECHR 112) emphasised that not being charged but being arrested falls within the ambit of being “charged with a criminal offence” (para 37). This is not helpful because there is no suggestion that Miranda was under arrest. But the Grand Chamber in Imbrioscia v. Switzerland (Application no.13972/88  ECHR 56 (para 36)) noted that:
‘Certainly the primary purpose of Article 6 (art. 6) as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, but it does not follow that the Article (art. 6) has no application to pre-trial proceedings.’(my emphasis)
Moreover, the ECtHR in Eckle v. Germany (Application no.8130/78  ECHR 4 (para 73-75)) pointed out that in relation to ‘criminal charge’ the protection of Article 6 starts with an official notification of suspicion against the person. In Foti v Italy (Application no.7604/76;7719/76;7781/77;…  ECHR 11 (para 52-53)) it was also made clear that what can constitute a ‘charge’ are practical measures which carry the implication of allegation which can affect the situation of the suspect. In relation to Miranda, the powers used against him could only be done so in pursuant to s.40(1)(b) which states that is or has been concerned in the commission, preparation or instigation of acts of terrorism. He was questioned, detained, searched, had his belongings confiscated, so it is reasonable to conclude that Article 6(1) and therefore also Article 6(3) is applicable.
Although not absolute, the Grand Chamber in Salduz v. Turkey(Application no. 36391/02  ECHR 1542 (para 51)) have stated that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial. Moreover, the Grand Chamber uttered that (para 55) Article 6(1) requires that, as a rule to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction, whatever the justification, must not unduly prejudice the rights of the accused under Article 6. This right would irretrievably be prejudiced, if incriminating statements made during police interrogation without access to a lawyer are used for a conviction.
But Miranda’s situation there appears to be a refusal of legal assistance; could the removal of choice be determinative? It has been held that even assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (para 73). The ECtHR in Campbell and Fell v United Kingdom(Application no. 7819/77;7878/77  ECHR 8 (para 98)) noted that the Convention requires that a ‘person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing.’ But the admissibility decision of Krempovskij v Lithuania(Application no. 37193/97 (1999)) has demonstrated that not having a lawyer of choice at the pre-trial investigation stage does not breach Article 6(3)(c) as the purpose of this provision is to ensure that both sides of the case are actually heard by giving the accused, as necessary, the assistance of an independent professional. However, Campbell can be distinguished from Krempovskij as the former had the means to pay for a lawyer and even those that require legal aid there is still some degree of choice as the ECtHR in Croissant v Germany (Application no. 13611/88  ECHR 60 (para 29)) asserted that:
‘It is true that Article 6(3)(c) entitles “everyone charged with a criminal offence” to be defended by counsel of his own choosing (see Pakelli v Germany). Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them.’
Sch 7 does not appear to provide for the option of legal assistance (unless as assumed detention occurs at a police station), this in essence appears to be a blanket provision and therefore cannot take into account individual cases were legal assistance is imperative. It is difficult to see how such a provision could be deemed Convention compliant. Even if legal assistance can be provided in accordance with the Terrorism Act 2000, denying it in individual circumstances still requires compelling justifications. It is very true that having legal assistance may alter the conduct of a suspect but in Murry v United Kingdom (Application no. 18731/91 – Grand Chamber Judgment  ECHR 3 (para 68)) it was observed thatit was not for the Court to speculate on what the applicant’s reaction, or his lawyer’s advice, would have been had access not been denied during this initial period. This case highlighted that even a lawfully exercised power of restriction is capable of depriving an accused, in certain circumstances, of a fair procedure (para 65). The right to legal advice should not be disposed of to the convenience of detaining authorities. After an initial interrogation, whether or not, this eventually proceeds to court, does not absolve the responsibility of the state and the relevant authorities to respect the principles enshrined in Article 6 from the outset, this ensures a degree of protection to the suspect and it could theoretically reduce the risk of a conviction being quashed for a breach of Article 6. Though having said that, even then the facts are still not clear because the Metropolitan police have issued a statement saying Miranda was offered legal representation and a solicitor attended. Irrespective of this, this does not alter the issue with Sch 7 itself. The Coalition appear to be aware of this and are seeking to amend Sch 7 where Stop Watch summarise that whether at a port or a police station an individual can consult a solicitor but this can still be delayed until the person has already been questioned and searched by a police officer. If this were to be so, then once again compelling reasons for essentially denying access to a lawyer must be given, this is no guarantee that even that will satisfy the requirements of Article 6 in every case.
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