Introduction

The case of Barry McLean versus Her Majesty's Advocate (HMA) before the Scottish High Court of Justiciary in 2023 addresses a pivotal question in criminal procedure: whether an individual occupying a residence under a search warrant has the right to access legal advice before complying with police requests for electronic device credentials, such as PINs or passwords. This case scrutinizes the intersection of individual rights and law enforcement procedures, particularly in scenarios involving the search of electronic devices that may contain incriminating evidence.

Summary of the Judgment

Barry McLean was indicted for possessing indecent images of children under the Civic Government (Scotland) Act 1982. During a police search of his Ayr residence, officers requested the PIN for his Samsung mobile phone, which led to the discovery of incriminating images. McLean contested that he was a suspect deprived of his liberty to seek legal counsel before divulging his PIN. The sheriff rejected this objection, leading to McLean's appeal. The High Court upheld the sheriff's decision, asserting that the right to legal advice is codified to apply specifically when an individual is in police custody. Since McLean was not under custody during the search, the court found no infringement of his rights.

Analysis

Precedents Cited

The judgment extensively references several key cases and statutory provisions to underpin its reasoning:

• Ambrose v Harris (2012 SC (UKSC) 53): Established that access to legal advice arises when a person's freedom of action is significantly curtailed.
• Salduz v Turkey (2009) 49 EHRR 19: Argued that suspects should have access to legal counsel from the outset of interrogation.
• Cadder v HM Advocate (2011 SC (UKSC) 13): Reinforced the necessity of legal advice during police questioning.
• Dayanan v Turkey [2009] ECHR 2278: Clarified that the right to legal counsel arises upon taking someone into custody.
• HM Advocate v P (2012 SC (UKSC) 108): Discussed the admissibility of evidence in relation to a fair trial.
• Wilson v Brown [2021] SAC (Crim) 4: Emphasized the importance of balancing individual rights with effective crime investigation.
• Miln v Cullen (1967 JC 21): Highlighted the need to balance individual rights against the objectives of criminal investigations.

These precedents collectively establish the framework within which the court assessed the appellant's rights and the police's procedural conduct.

Legal Reasoning

The court's legal reasoning centers on statutory interpretation and the application of established case law. It acknowledges that the right to legal advice is not absolute but is contingent upon specific circumstances, notably the individual's status—whether in custody—and the nature of interactions with law enforcement. The Criminal Justice (Scotland) Act 2016, particularly Section 44, codifies the right to legal counsel when a person is in police custody. The court determined that since McLean was not in custody during the search, the absence of immediate legal advice did not violate his rights. Additionally, the court noted that the request for the PIN was a procedural step to facilitate the search rather than an interrogation designed to elicit incriminating responses.

The court also considered the practical implications of requiring legal counsel access during searches. It opined that mandating such access could impede effective criminal investigations, especially when the police seek to secure electronic evidence swiftly.

Impact

This judgment reinforces the statutory framework delineating when legal advice is accessible to individuals subjected to police procedures. By affirming that the right to legal counsel during searches is contingent upon custody, the decision provides clarity to law enforcement and the judiciary on procedural expectations. Future cases involving searches of electronic devices will likely reference this judgment to assess the applicability of the right to legal advice based on the individual's status during the search. Moreover, it underscores the importance of distinguishing between investigative processes and custodial interrogations in safeguarding legal rights.

Complex Concepts Simplified

Legal Advice Access Point: The moment when an individual is entitled to consult a lawyer during police interactions. This case clarifies that such access is triggered when a person is formally under police custody, not merely during a search.

Police Custody: A legal state where an individual is detained by the police, restricting their freedom to leave and necessitating the provision of legal counsel.

Search Warrant Execution: Authorized police action to search premises based on probable cause. This execution does not inherently place individuals under custody unless accompanied by detention measures.

Preliminary Request for Credentials: Requests made by police to access electronic devices during a search to facilitate the investigation. In this context, providing a PIN is viewed as a procedural step rather than an act of interrogation.

Conclusion

The High Court's judgment in McLean v HMA [2023] ScotHC HCJAC_16 delineates the boundaries of legal counsel access during police searches. By affirming that the right to legal advice under the Criminal Justice (Scotland) Act 2016 is activated only upon custody, the court emphasizes a clear procedural threshold. This decision balances individual rights with the necessity for effective law enforcement, providing a definitive stance that during searches conducted under a warrant, without detention, individuals are not entitled to immediate legal consultation before complying with procedural requests. As such, the judgment serves as a critical reference point for future cases navigating the complexities of legal rights during police investigations.