Human rights

Criminal procedure – Admissibility – Police interviews

Cadder v HM Advocate: SC (Lords Hope (deputy president), Rodger, Walker, Brown, Mance, Kerr, Sir John Dyson): 26 October 2010

The appellant (C) appealed, in effect, against a decision of the High Court of Justiciary (HM Advocate v McLean (Duncan) [2009] HCJAC 97, [2010] SLT 73) that reliance by the Crown on admissions made by an accused who had not had access to legal advice while detained under section 14 of the Criminal Procedure (Scotland) Act 1995 did not of itself constitute a violation of articles 6(1) and 6(3)(c) of the European Convention on Human Rights 1950.

C had been detained under section 14 of the 1995 act. He had been asked whether he wished a solicitor to be contacted but he had declined, and at no time during his interview under caution had he asked for a solicitor. He therefore did not have the benefit of legal advice at any stage either before or during that interview, in which he made a number of admissions. Those admissions were then led, and relied on, by the Crown in obtaining a conviction. The court in McLean took the view that the Crown’s reliance on admissions obtained in the absence of a solicitor was not of itself a violation of articles 6(1) and 6(3), the guarantees otherwise available in the Scottish legal system being sufficient to provide for a fair trial. The issues were whether: (i) the Crown’s reliance on C’s admissions was incompatible with his rights under articles 6(1) and 6(3)(c), having regard to the decision in Salduz v Turkey (36391/02) [2009] 49 EHRR 19 ECHR (Grand Chamber); (ii) the act of the lord advocate in leading and relying on that evidence was ultra vires, having regard to sections 57(2) and 57(3) of the Scotland Act 1998 and section 6(2) of the Human Rights Act 1998; (iii) if so, whether the decisions in McLean and in Paton (Gary Alexander) v Ritchie [2000] JC 271 HCJ should be overruled with prospective effect only, or with any other limit on the temporal effect of the decision.

Held: (1) Though the court’s decision in McLean was entirely in line with and was fully supported by the previous authority of Paton and Dickson v HM Advocate [2001] JC 203 HCJ appeal, it could not survive scrutiny in the light of Salduz, Salduz followed, McLean, Paton and Dickson overruled. In Salduz, the Grand Chamber held that, as a rule, a detainee was to have access to a lawyer from the time of his first interrogation, unless there were compelling reasons in the particular circumstances of the case that made the presence of a lawyer impracticable. The words ‘as a rule’ had to be understood as a statement of principle applicable equally in all contracting states. While there was some room for flexibility in the application of the requirement, there could be no systematic departure from it, and there was no escape on the ground that the guarantees otherwise available under the Scottish legal system were sufficient to secure a fair trial. The system of detention under sections 14 and 15 of the 1995 act had been devised on a particular view of where the balance was to be struck between the public interest and the rights of the accused. That view was out of keeping with the rest of the UK and was irreconcilable with convention rights. The court had no option but to follow Salduz (see paragraphs 29, 35, 40-41 and 45-50 of judgment).

(2) The lord advocate’s reliance on C’s admissions was not protected by section 57(3) of the Scotland Act. Section 14(7) of the 1995 act could be read and given effect so as to preclude the admission in evidence of the admissions of a detainee subjected to questioning without access to legal advice. The consequence of Salduz was that such evidence was, as a general rule, inadmissible. She therefore had no power to lead and rely on that evidence (paragraphs 52-55).

(3) The decision in the instant case did not permit the reopening of closed cases. Cases that had not yet gone to trial, cases where the trial was still in progress, and timeously brought ongoing appeals would have to be dealt with on the basis that a detainee must have had access to an enrolled solicitor before being questioned by the police, unless in the particular circumstances of the case there were compelling reasons for restricting that right. The retrospective effect of the instant decision was, however, excluded from cases that had been finally determined (paragraph 60).

Appeal allowed.

Christopher Shead, Martin Richardson, Anthony J McGlennan (instructed by Barony Law Practice) for the appellant; Elish Angiolini QC, W James Wolffe QC, Simon Collins, Gordon Balfour (instructed by Crown Agent) for the first respondent; Alan Summers QC, Eugene Creally (instructed by Office of Solicitor to the Advocate General for Scotland) for the second respondent and intervener; Aidan O'Neill, Jodie Blackstock (instructed by Herbert Smith; Taylor and Kelly) for the intervener.