Ambrose v Harris [2011] UKSC 43; [2011] 1 WLR 2435

Key point

  • The majority held that domestic law should not interpret Convention rights more broadly in favour of applicants than the Strasbourg court
  • Article 6 of the European Convention on Human Rights 1950 entails the right to legal advice in questioning after the suspect has been charged and the exclusion of such advice can render evidence inadmissible

Facts

  • In three separate cases, the appellants had been questioned by the police before they had been detained at a police station or received legal advice; in the third case he was questioned after the police had subdued and handcuffed him
  • In their criminal cases, the prosecution relied heavily on these statements made before proper investigation, to which the appellants objected on the ground that their article 6 ECHR right to fair trial was violated

Held (House of Lords)

  • Appeal dismissed; statements were admissible except in the third case, where the in which the statements were made found to be sufficiently coercive as to make the evidence inadmissible
  • Strasbourg jurisprudence is silent on the access or legal advice prior to being detained, thus domestic law should not provide wider protection under article 6

Lord Hope

Scope of s2

  • If Strasbourg has not yet spoken clearly enough on this issue, the wiser course must surely be to wait until it has done so’: p.15-17

Current case

  • Under Strasbourg jurisprudence, article 6 requires legal advice to be provided from the point the person is charged or in custody
  • In the third case, the appellants freedom was significantly curtailed while making the statements, as he had been handcuffed and effectively already been in police custody without legal aid, thus, the statements that the third appellant made without proper legal advice could not be admissible: p. 71

Lord Kerr (Dissenting)

  • In all three cases the evidence should be inadmissible: p.128
  • It is the duty of domestic courts to rule on Convention rights even where Strasbourg has not given clear directions: p.129
  • He sees the selection of the moment of custody (or ‘being charged’) as the point from where there may be a right to legal advice as arbitrary and illogical, and argues that a lawyers presence is always required when the suspect may incriminate themselves, irrespective of formal arrest or questioning: p.145

Commentary

The judgment has been criticised by Lord Irvine of Lairg in A British interpretation of Convention rights, , P.L. 2012, Apr, 237-252,

  • The court did not reach their ‘conclusion based upon a careful assessment’ of the circumstances, facts and rights, but rather based their judgment on the notion that ‘Strasbourg had not yet considered such a factual situation… [so] the claim could not succeed’: p.249
  • ‘Ambrose holds that the domestic courts lack any mandate to go beyond what Strasbourg has clearly held. The answer to this is that the HRA, and in particular s.2, is that mandate’: p. 251
  • ‘A policy of “wait and see” what Strasbourg may or may not do, if and when an appropriate case comes before it, simply will not do. Under s.2 it is the duty of the domestic court to decide the matter for itself’: p. 250