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Cadder v HM Advocate 
C was detained by the police on suspicion of serious assault and cautioned in line with Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right and so he was interviewed without a lawyer being present. During the interview, C made a number of admissions which were later relied on by the Crown at trial. C was subsequently convicted.
The Criminal Procedure (Scotland) Act allows a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours and during detention, the police may put questions to the detainee. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor.
In Her Majesty’s Advocate v McLean  HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that it was not a violation of Articles 6(1) & 6(3)(c) of the European Convention on Human Rights (ECHR) for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial.
This decision was made not withstanding the earlier judgment of the Grand Chamber of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421 which unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody.
As the appeal court in Scotland refused C leave to appeal against his conviction relying on the decision in McLean, C's appeal to the UK Supreme Court was, in effect, an appeal against the decision in that case. The subject of the appeal was whether, in not ensuring the right of access to a lawyer while in the police station, the Scottish statute breaches the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the ECHR.
A unanimous seven judge panel of the UK Supreme Court allowed the appeal.
It confirmed that the ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. It was thus held that the current law in Scotland breaches the right to a fair trial under Article 6 ECHR.
In giving reasons for the judgment, the Supreme Court held that while the High Court of Justiciary's decision in McLean was entirely in line with previous domestic authority, that authority cannot survive in light of the European Court of Human Rights' decision in Salduz and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right. The exception applies only if there are particular circumstances in the individual case and does not allow a systematic departure from the rule such as that set up by the 1995 Act.
Previous cases have established that the court should follow any 'clear and consistent jurisprudence of the Strasbourg court' and the Supreme Court held that there is a now a clear and consistent line of authority from the ECtHR following Salduz. The guarantees otherwise offered by the Scottish legal system (in particular corroboration) are commendable but do not address the European Court's concern, which is with self-incrimination. Lord Rodger observed:
For this reason, in my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard… and for suspects to be routinely questioned without having the right to consult a lawyer first. On this matter Strasbourg has spoken: the courts in this country have no real option but to apply the law which it has laid down. (para 93)
In support of such a conclusion it was also noted, with the assistance of JUSTICE submissions, that the majority of those member states which prior to Salduz did not afford a right to legal representation at interview (Belgium, France, the Netherlands and Ireland) are reforming their laws to bring them into line with the Convention's requirements.
Lord Hope, giving the majority judgment, observed:-
It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure (para 4).
The Supreme Court remitted the case to the High Court of Justiciary for further procedure. The Scottish courts will now decide whether his trial was unfair in light of the Supreme Court ruling.
- JUSTICE intervened in the case, represented by Aidan O’Neill QC of Matrix Chambers/Ampers and Stable and Jodie Blackstock of JUSTICE, assisted by Tony Kelly, Scots Solicitor and Herbert Smith LLP. The Supreme Court made express reference to JUSTICE's submissions in its judgment.
- The decision does not permit closed cases to be re-opened. The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. There are at least 76,000 live cases directly affected by the judgment.
- In response to the judgment, emergency legislation (the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill) has been presented and approved by the Scottish Parliament. JUSTICE is gravely concerned by the speed at which the legislation has been approved, with little time for proper scrutiny and criticises the proposed amendments in a recent briefing.