New Judgment: McGowan (Procurator Fiscal, Edinburgh) v B (Scotland)  UKSC 54
23 Wednesday Nov 2011
A reference of a devolution issue at the request of the Lord Advocate on the issue of waiver of the right to legal assistance.
By a majority of 4-1, in principle it would not be incompatible with ECHR, art 6(1), (3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/article 6 rights to legal advice, and, without having received advice from a lawyer, had stated that he did not wish to exercise such rights. Art 6 does not expressly state that a person must have had legal advice before he can be taken to have waived the right of access to a lawyer. In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal, and must be attended by the minimum safeguards commensurate to the importance of the right. None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right. This also reflects the position of the Supreme Courts of Canada and the United States. There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police.