High Court rules that person asked to provide phone PIN during premises did not require access to legal advice first

About this case:

• Citation:
  [2023] HCJAC 16
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Appellant Barry McLean was indicted on charges libelling contraventions of the Civic Government (Scotland) Act 1982. He argued that he had been entitled to legal advice given that he was being questioned with a view to eliciting an incriminating reply.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Pentland and Lord Matthews. GR Brown, solicitor advocate, appeared for the appellant and Cameron, advocate depute, for the Crown.

Freedom of action

On 4 March 2021, the police obtained a warrant to search a house in Ayr occupied by the appellant and four relatives. The warrant was in standard form and authorised the breaking open of doors; the search of persons found on the premises; and the taking of possession of material which was relevant to the alleged offence, including computers, mobile phones and other electronic devices. The police cautioned the appellant, who had been the subject of previous allegations which had not resulted in a conviction.

In the course of the search the police found a Samsung phone belonging to the appellant, which had images on it that formed the basis of the charges of possessing indecent photographs or pseudo-photographs of children. The appellant was asked for its PIN and provided it without objection. At no point did he attempt to leave the premises, although a police officer stated at the first diet that had he attempted to do so he likely would have been unsuccessful.

In repelling an objection to prospective testimony from police officers about what the appellant said when providing the PIN, the sheriff reasoned that the investigation of crime would be severely impeded if, at the start of a search under warrant, persons named in the warrant had to be given access to legal advice. The request for the PIN had been no more than a preliminary question to assist in the further direction of the search and investigation, not designed to elicit an incriminating response.

Counsel for the appellant submitted that at the material time the appellant was a suspect who was not free to leave the premises, with his freedom of action curtailed significantly. The request for his PIN had been designed to elicit an incriminating response from him, and accordingly the failure to afford him access to legal advice rendered the reply, and the fruits of that reply, unfair.

Suspect in a general sense

Delivering the opinion of the court, Lord Carloway observed: “[The Criminal Justice (Scotland) Act 2016] makes it clear that the point at which a suspect is entitled to access to legal advice (specifically the right to have a private consultation with a solicitor at any time) is when that person is ‘in police custody’; ie after he or she has been arrested (s 64). In practical terms, the right will normally be afforded at the point when the suspect arrives at the police office.”

He continued: “The appellant was not in police custody. He may have been a suspect in a very general sense of being a person whom the police suspected of having committed crimes of the type with which he was eventually charged, but he could not have been charged in the absence of evidence that he had at least possession of the relevant images. That, so far as the court is aware, could only have arisen once the search had been executed and the images recovered.”

On whether the police request was reasonable, Lord Carloway said: “The police are entitled to make requests outwith the confines of the police office which are designed, not to elicit an incriminating reply to a charge, but to progress their inquiries. In the context of a search under warrant, that will include being able to ask persons to open lockfast places or to provide the necessary keys or combinations to do so or, as in this case, to provide PINs or pass codes to enable access to devices which fall within the scope of the search warrant.”

He concluded: “In these circumstances, the court is not persuaded that the result of obtaining legal advice would have been that the images would not have been recovered. In the event, none of this arises since the appellant volunteered his PIN when he was not under any coercive circumstances. He was free to seek such advice as he wished. Had he been prevented from doing so, different consideration might have arisen. He was not.”

The appeal was accordingly refused.