The right to
legal advice was central to R v Taylor,
2014
SCC 50 (18 July 2014). The defendant had requested legal advice but this request
was not acted on during the collection of a blood sample which was of central
importance on an alcohol-related driving offence. On conducting the balancing
exercise in accordance with R v Grant
(discussed here
on 19 July 2009) the Court held that the improperly obtained evidence was
inadmissible.
The right to
legal advice is closely associated with the right to silence. A motive for
refusal of access to a lawyer, it may be reasonably be conjectured, could be that
the police do not want the suspect to exercise the right to silence. And the
right to silence is of fundamental importance: it is a corollary of the
obligation on the prosecutor to prove the charge, and of the need to do so
without the assistance of the defendant.
The right to
legal advice has previously been the subject of commentary here: see Cadder v HM Advocate [2010] UKSC 43 (here
on 27 October 2010), R v Sinclair
[2010] SCC 35 (here
on 15 October 2010), Salduz v Turkey
[2008] ECtHR 1542 (here
on 3 December 2008).
The central
issue highlighted in those comments is whether a breach of the right to legal
advice raises fair trial issues, in which case a balancing exercise is not
appropriate (but an exclusionary rule is), or whether it raises issues of
public policy, where balancing of competing interests is appropriate.
It is easy to
forget history and to say that the issue of the admissibility of evidence
obtained in breach of the right to legal advice is an issue of policy. The
Birmingham Six abuses of police power, and the manufacture of false
confessions, came as a shock to British justice, and drove home the importance
of the right to silence and the vulnerability of people who are held in
custody.
In his
wonderful article in the London Review of
Books, vol 15 no 21 (4 November 1993) “A sewer runs through it”, Alastair
Logan (a solicitor whose clients included the Guildford Four and the Maguire
Seven) noted that research presented to the Royal Commission on Criminal
Justice
“shows
that 42 percent of those who were arrested and detained in police stations
during the currency of the Commission were educationally subnormal or of
borderline intelligence; another 7 percent were suffering from defined mental
illnesses. The average IQ of detained persons was 82. One third were
intellectually impaired, and 35 percent were not in a normal mental state due
to extreme distress, mental disorder or drugs. Twenty percent were suffering
from an unusually high level of anxiety and distress. About 20 percent required
the assistance of an adult to safeguard them and their rights, though the
police identified only 4 percent of that number as requiring such protection.
The police commonly failed to recognise that detained persons suffering from
depression were vulnerable. There is no systematic training available to police
officers to enable them to identify vulnerable suspects or mental disorder. The
removal of the right to silence attacks the vulnerable and the disorientated,
who massively outnumber the terrorists and the professional criminals, in or
out of uniform.”
It is very
easy, in cases like Taylor where the
alleged offending is not of the most serious kind, for courts to conclude that
a balancing exercise favours exclusion of evidence obtained in breach of the
right to legal advice. Indeed, in Taylor
the Court was not concerned to explore what advice the defendant could have
been given [41], or in what way absence of legal advice may have prejudiced his
defence. For more serious allegations the balancing exercise may well include
such considerations. Yet it is when being held in custody on more serious
allegations that a person will be most in need of the protection of the right
to legal advice, and a court would have to consider whether use of evidence
improperly obtained from a vulnerable defendant really promotes respect for the
law.
