Ambrose v Harris, Procurator Fiscal, Oban (Scotland)

Factual and Procedural Background

The opinion consolidates three Scottish references, each raising the admissibility of answers given to police questions when the suspect had not yet received legal advice.

• Reference 1 (Appellant): After a roadside breath-test failure, two officers asked the Appellant three questions about car keys, driving the vehicle and future intentions. The answers were led at a summary trial for an alcohol-in-charge offence. Following conviction, the Appellant invoked Articles 6(1) and 6(3)(c) ECHR.
• Reference 2 (Defendant M): Five days after an assault, officers visited Defendant M’s home, cautioned him and asked seven questions. During later station-detention the Crown conceded the tape-recorded interview was inadmissible, but sought to rely on the doorstep answers. The sheriff admitted them; the Appeal Court referred the Convention issue.
• Reference 3 (Defendant G): During execution of a drug-warrant, G was hand-cuffed. Before formal arrest he identified heroin in his pocket and replied to questions about items discovered in the flat. The Crown disclaimed reliance on the later section-14 interview but required the search-schedule answers to secure sufficiency of evidence. The trial judge referred the point.

Legal Issues Presented

1. Does the Salduz principle (right of access to a lawyer before police questioning) apply only after a suspect is taken into police custody, or also to earlier questioning?
2. If it can apply earlier, at what precise moment does the entitlement arise?
3. Whether, on the facts of each reference, the Prosecutor’s reliance on the answers infringes Articles 6(1) and 6(3)(c) ECHR.

Arguments of the Parties

Prosecutor’s Arguments

• A suspect obtains the Salduz right only when three elements concur: being a “suspect”, “in police custody”, and subjected to “police interrogation”.
• Roadside or doorstep enquiries are routine investigative steps; compulsory access to counsel would hamper crime investigation.
• Any broader rule has not been “clearly and constantly” established by Strasbourg; domestic courts should not extend it.

Defence Arguments

• Once an individual is a suspect, interrogation capable of eliciting incriminating answers requires prior legal advice, irrespective of physical custody.
• Salduz, properly read with later cases, stresses “first interrogation”, not the location of detention.
• Admitting answers obtained without counsel irretrievably prejudices the defence and violates Articles 6(1) and 6(3)(c).

Table of Precedents Cited

Court's Reasoning and Analysis

The Justices delivered multiple concurring opinions. Key strands include:

• Article 6 is engaged once the suspect’s situation is “substantially affected”, but Strasbourg has not clearly required access to counsel before custody.
• The Grand Chamber in Salduz focused on interrogation during police custody; later Strasbourg cases generally replicate that context.
• Majority approach (Judge [Hope] et al): The right arises when a suspect is in custody or his freedom of action is significantly curtailed. Questioning in less coercive settings remains subject to the domestic fairness test; absence of counsel is merely one factor.
• Minority approach (Judge [Kerr]): The purpose of Article 6 protection is to safeguard against self-incrimination whenever interrogation is liable to elicit incriminating answers; therefore access to a lawyer should precede any such questioning, custody or not.
• Applying the majority test, only Defendant G’s circumstances (hand-cuffed during a warrant search) crossed the custodial/curtailment threshold.

Holding and Implications

Holding: The Supreme Court ruled that the Salduz/Cadder exclusionary rule applies to questioning conducted while a suspect is in custody or when his freedom of action is significantly curtailed; it does not automatically extend to routine roadside or doorstep enquiries made before detention.

• Reference 1 (Appellant): NO VIOLATION; admissibility to be reassessed by the Appeal Court on general fairness.
• Reference 2 (Defendant M): NO VIOLATION; sheriff must decide admissibility under domestic fairness principles.
• Reference 3 (Defendant G): VIOLATION; Prosecutor cannot rely on answers given during the coercive warrant search.

Implications: Scottish prosecutors remain barred from leading answers obtained during custody without prior legal advice, but may continue to rely on pre-custody statements unless overall fairness requires exclusion. The decision preserves investigative flexibility for routine enquiries yet affirms strengthened safeguards once significant restraint begins. No new Strasbourg-level precedent is created.