Stuart Barclay v. Procurator Fiscal, Ayr [2015] HCJAC 110

Appeal by stated case:- On 2 October 2014, at Ayr Sheriff Court, the appellant was convicted after trial on summary complaint of a contravention of section 3 of the Sexual Offences (Scotland) Act 2009, namely, a charge of sexual assault and a charge of assault to injury. On 10 December 2014 the appellant was sentenced to six months imprisonment. The appellant appealed against his conviction in relation to the admissibility of a police interview that had taken place. It had been argued at the trial that an interview had taken place when the appellant was unfit to be interviewed and the contents of the interview ought to be held to be inadmissible. The sheriff considered that there was no unfairness. The circumstances were that the appellant was detained on 16 January 2013 and interviewed by the police under tape recorded conditions. He had been cautioned and advised of his right of access to a solicitor, which he had declined. Here it was submitted on behalf of the appellant that the interview should not have been admitted because it had been unfairly obtained. He was a vulnerable adult suffering from schizophrenia when he was detained and incapable of granting an informed waiver of his right of access to a solicitor. It was further submitted that whether the interviewing officers were aware of that vulnerability was irrelevant and the sheriff erred in placing too much emphasis upon the police officers’ ignorance of his schizophrenia, and too little weight on the appellant’s actual vulnerability. On behalf of the Crown it was submitted that the interview had been conducted fairly and was admissible with the appellant’s waiver being informed, voluntary and unequivocal and to there being nothing which would make the interviewing officers think there was an issue in relation to the appellant’s ability to participate effectively in the interview process. Here the court refused the appeal. The court observed that it is generally an issue for the determination of the court at first instance whether a suspect understood the implications of refusing legal assistance and in the present case there was no evidence to show that the waiver was anything other than valid, informed, voluntary and unequivocal. The court considered that the sheriff was entitled to decide the matter in the way he did.