Issue 52 February 2011 - Wake Up Call: Post-Cadder Candour Part 1

Special thanks to: John McGovern, Solicitor-Advocate, Sheriff Nigel Morrison Q.C. and Professor Jim Murdoch.

In Part I of this article we look at the context and judgment of Cadder v HM Advocate. Part II, to be published in Issue 53 of the Scottish Human Rights Journal, will look at Cadder in practice and its retrospective effect. You can access Part II here.

 

The judgment of the UK Supreme Court in the case of Cadder v HM Advocate,¹ announced in late October of last year, has rocked the foundations of the Scottish criminal justice system.

Peter Cadder, then aged just 16, was detained by the police on suspicion of serious assault. He was cautioned and informed of his right to have intimation of his detention sent to a solicitor. He declined to exercise that right and, during a 27 minute interview in the absence of legal representation, made a number of damaging admissions that were relied upon by the Crown at trial and which contributed, at least in part, to his eventual conviction.

After an unsuccessful appeal in the appeal court, Cadder’s case was examined by a bench of seven judges in the Supreme Court in what was effectively an appeal against the ruling of the High Court of Justiciary in the case of HM Advocate v McLean,² then the leading Scottish authority on the human rights implications of the absence of legal representation at the investigation stage of criminal proceedings. This article will explain and discuss a number of the Cadder judgment’s most important aspects and implications, including the tumultuous context from which it sprung and the enormous changes it has caused. Some of the judgment’s potential shortcomings will also be explored and examined.

I

The Context

(i) The Convention and pre-Cadder domestic law

Article 6(3)(c) of the European Convention on Human Rights (“the Convention”) protects the right of a person facing a criminal³ charge⁴ “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. Paragraphs (2) and (3) of art.6 “represent specific applications of the general principle stated in paragraph 1 of the Article” and “are constituent elements, amongst others, of the notion of a fair trial in criminal proceedings”.⁵ The paragraphs must therefore be considered in conjunction with each other. The findings of the Council of Europe’s European Committee for the Prevention of Torture (“CPT”) must also be taken into account when considering the fairness of criminal proceedings in terms of the Convention.⁶ The CPT urged States to give force to a “trinity of rights”⁷ for police detainees in their domestic law, recognising that an individual is at his most vulnerable point directly after being taken into police custody. The right of confidential access to a lawyer during detention is one of the three constituent elements of this “trinity”, which forms “the core of the CPT’s strategy for protecting detainees against ill-treatment during police detention”.⁸

It has long been established that the admissibility of evidence in criminal proceedings is primarily a matter for determination at domestic law.⁹ Accordingly, in art.6 cases, the remit of the European Court of Human Rights (“the ECtHR”) is to assess whether the proceedings as a whole,¹⁰ including the way in which the evidence was obtained, were fair.¹¹

For years the pre-Cadder statutory and common law safeguards in Scots law were thought robust enough to give adequate protection to individuals’ rights under art.6.¹² The Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) provided a number of protections for detainees at the stage of initial police investigation. Amongst the most notable of these were: the limitation of the legal period of detention without charge to a maximum of six hours,¹³ the imposition of a duty on arresting officers to caution detainees and to inform them of their right to remain silent without prejudice to their defence¹⁴ and the right of any detainee to have intimation of their detention sent to a solicitor.¹⁵

A consistent line of domestic case-law¹⁶ demonstrated that any reliance by the Crown on statements made by an accused in the absence of a lawyer was not to be considered unfair. Great emphasis was placed upon the holistic fairness of proceedings, the implication being that the absence of a lawyer at the initial investigation stage should not of itself render a criminal trial unfair.

(ii) The discord of Salduz and McLean: the turning point

In the 2008 case of Salduz v Turkey, it was held by the ECtHR that, “as a rule”, access to legal representation should be provided to police suspects “unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”.¹⁷

The Grand Chamber’s view would appear to be plain and unambiguous. Nevertheless there were some in Scotland reluctant to entertain the idea of changing Scots Law so as to provide legal representation to detainees as a matter of right. Indeed, some sought to brand the issue a matter of national pride: foul scorn that any court of Europe should dare claim to have bound Scotland with the judgment of a case emanating from the farthermost frontier of the continent.

The Scottish rejection of Salduz is fully and frankly expressed both in the case of Harvie v Macioca¹⁸ and in the decision of the bench of seven judges in the case of HM Advocate v McLean.¹⁹ In both, it was argued unsuccessfully that, in light of Salduz, suspects interviewed under detention in Scotland should have a de planoright of access to legal advice as opposed to the presence or absence of a lawyer being treated simply as a question of admissibility of evidence. It was held in both cases that the Grand Chamber in Salduz had not intended to create such an absolute right and that the question of legal representation in such instances should continue to be considered as merely one factor in the overall consideration of fairness, particularly in light of the aforementioned Scots law safeguards.

John McGovern, former President of the Glasgow Bar Association (“GBA”), feels that the unanimous McLean judgment was “stunning” and that it “summed up the lack of ECHR culture” in Scotland. In his view, “no one who was informed on the ECHR debate could believe that seven judges could all arrive at the conclusion they did. It was not Scots criminal law’s finest hour”.

II

The Cadder Judgment

In the Cadder judgment, Lord Hope expressed a similar view, commenting that “it is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure”.²⁰ All of their Lordships were at pains to stress the “profound consequences”²¹ that would likely stem from a ruling that the McLean reasoning had been flawed but recognised that, as Lord Hope aptly quipped, “there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on the grounds of expediency”.²²

(i) The correct basic interpretation of Salduz

Their Lordships held, amidst this turbulent background, that the McLean judgment had indeed been erroneous. It was considered that the right of access to legal representation for detainees that was being created in Salduz²³“could hardly be more clearly expressed”.²⁴

Their Lordships referred to the inherent link between art.6 and art.3 and the sanctity of the right against self incrimination. They interpreted the Salduz judgment as being intended to “tighten up the approach that must be taken to protect a detainee against duress or pressure of any kind that might lead him to incriminate himself”.²⁵ A number of excellent rebuttals of many of the arguments commonly ventured against pre-Cadder suggestions that Salduz ought to ring true in Scotland were also set forth by their Lordships.

Although the suggestion in McLean that the Salduz judgment should be applied with “a certain flexibility”²⁶ was acknowledged with approval in Cadder, it was nonetheless held that McLean had greatly overestimated the extent of the scope for departure from Salduz.²⁷ It was held that the circumstances in which deviation from Salduz could be permissible had to be truly exceptional.²⁸The statutory regime in place in Scotland at the time was deemed a “systematic departure”²⁹ and therefore totally incapable of being considered as such.

(ii) Scots law safeguards and geographical arguments: irrelevant

Prior to Cadder, some in the legal profession in Scotland felt that Scotland’s existing criminal law safeguards ought to satisfy the requirements of art.6 notwithstanding the failure to provide a right of access to legal representation. In Cadder, their Lordships again simply preferring an orthodox interpretation of the wording of Salduz - reiterated that, “[i]t is the particular circumstances of each case, not other guarantees that are available in the jurisdiction generally”³⁰ that will justify restrictions of the Salduz right.

As alluded to above, the geographical origins of Salduz caused considerable disquiet in Scotland. There was a great deal of scepticism as regards the credibility of a judgment of a case from Turkey (a State with a poor human rights record) holding itself out as being equally applicable to Scotland.

Such cynicism is perhaps understandable considering the rich tradition that Scotland has earned as a bastion and pioneer of civil liberty in criminal proceedings over the centuries.³¹ Indeed it was this reputation and esteem that saw her illustrious neighbours south of the border strive to imitate her example throughout the 19th and 20th centuries.

The safeguards available in Scots law were described as being “entirely commendable…[b]ut…, in truth, incapable of removing the disadvantage that a detainee will suffer if, not having had access to a solicitor for advice before he is questioned by the police, he makes incriminating admissions”.³²

On a more fundamental level, the message from their Lordships in Cadder is that dewy-eyed nostalgia about Scotland’s history in this area is utterly irrelevant as regards the Salduz right of access to legal representation. Lord Hope vehemently asserted that:

“[T]here is no hint anywhere…that the question whether or not a detainee who was interrogated without access to a lawyer has had a fair trial will depend on the arrangements the particular jurisdiction has made, including any other guarantees otherwise in place there. Distinctions of that kind would be entirely out of keeping with the Strasbourg court’s approach to problems posed by the Convention, which is to provide solutions that are universally applicable in all the contracting states.”³³

(iii) Salduz: “firmly established” in Strasbourg jurisprudence

Their Lordships recognised that the Salduz right of access to legal representation had been “firmly established”³⁴ in Strasbourg jurisprudence by countless decisions affirming and upholding it.³⁵

Amongst the specific examples given was the case of Pischalnikov v Russia.³⁶ In that case, the ECtHR ruled that the evidence obtained during the initial investigation stage “determines the framework in which the offence charged will be considered at the trial”³⁷ and is therefore of critical importance to the holistic fairness of any such trial. It was opined that, in the preliminary stages of any criminal investigation, an accused is generally in a state of vulnerability which “can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself”.³⁸

The Pischalnikov judgment also reiterated³⁹ the statement in Salduz that “the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction”.⁴⁰ Lord Hope referred⁴¹ to an interesting point raised in the case of Gäfgen v Germany.⁴² He noted that the Salduz principle applies not only to damaging statements made during police questioning but also to prejudicial evidence uncovered by subsequent lines of inquiry as a result of any such statement. This could be viewed as indicative of the fundamental and far-reaching nature of the Salduz right.

(iv) Risk of isolation from the rest of the UK and Europe

(a) Wrong turn: The Thomson Committee 1975

The Thomson Committee, which met in 1975 to reassess Scottish criminal procedure, made recommendations which ultimately led to the creation of the six hour detention provisions of the Criminal Justice (Scotland) Act 1980 (see now ss.14 and 15 of the 1995 Act). In Lord Hope’s opinion, the balance struck between the public interest and the rights of the accused by ss.14 and 15 of the 1995 Act was “irreconcilable with the Convention rights”.⁴³

He also referred to it as “out of keeping with current thinking in the rest of the United Kingdom”,⁴⁴ citing the Philips Commission⁴⁵ which (by stark contrast) recommended a Salduz-compliant system of private access to legal representation at any stage during police investigation for detainees in England and Wales.

There is perhaps cause to suggest that this unwelcome statement is not merited in that the Report of the Philips Commission was published in 1981. It could be thought unreasonable to expect the Thomson Committee to have had the clairvoyance to second guess the content of a review of English law some six years in the future. One need not look far for an apt illustration of the fact that developments may occur quickly. Indeed, less than six months ago, the very provisions condemned as absurd and backward by his Lordship were good law.

Lord Hope nonetheless commented that “[b]y preferring to go their own way, those who were promoting the legislation that gave effect to the Thomson Committee’s recommendations were shutting their eyes to the way thinking elsewhere was developing” and that “[n]ow, sadly, 30 years on the Scottish criminal justice system must reap the consequences.”⁴⁶

(b) Other European States

Reference was also made to the other States⁴⁷ now faced with the daunting task of traipsing back out of the wilderness of their non Salduz-compliant criminal law.

Lord Hope stressed that, if Scotland were not to follow their example, “it would be almost alone among all the member states in not doing so” and “would not be able to find support for that position” from anywhere else in the UK.⁴⁸

In short, or all of the above reasons, it was held that the McLean judgment - although totally in line with previous authority - simply could not survive in light of Salduz. Scotland is therefore under a duty “to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning”.⁴⁹

 

References

1[2010] UKSC 43

2 [2009] HCJAC 97; in that the appeal court relied upon the McLean judgment in refusing Cadder’s appeal

3 Application No.15963/90, Judgment of October 23, 1995,

Gradinger v Austria, 36; See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, at para.5.21

4Application No.6903/75, Judgment of February 27, 1980, Deweer v Belgium, at para.46; See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, at para.5.22

5Application No.6903/75, Judgment of February 17, 1980, Deweer v Belgium at para.56; See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, at para.5.03

6Due to the fact that art.6 is closely related to a number of other Convention provisions(See Robert Reed and Jim Murdoch, A Guide to Human Rights Law in Scotland, 2nd edn, Tottel Publishing, 2008, at para.5.05)

7 12th General Report, CPT/Inf (2002) 15, at para.40

8 Jim Murdoch, The Treatment of Prisoners: European Standards, Council of Europe Publishing, May 2006, p.161

9Application No.10862/84, Judgment of July 12, 1988, Schenk v Switzerland

10 Including the pre-trial investigation stage (Application No.28135/95, Judgment of June 6, 2000, Magee v United Kingdom, at para.41)

11 Jalloh v Germany [GC], No.54810/00, EHRR 2006-IX

12 It was indeed observed in Brown v Stott, 2001 SC (PC) 43 that these safeguards had been “framed in such a way as to provide appropriate checks and balances in the interests of fairness to the accused” (per Lord Hope of Craighead at p.73)

13Criminal Procedure (Scotland) Act 1995 s.14(2)

14 Ibid s.14(6) and s.14(9)

15 Ibid s.15(1)

16Notably including the case of Paton (Gary Alexander) v Ritchie, 2000 J.C. 271 and the case of Dickson v HM Advocate, 2001 J.C.203

17Application No.36391/02 (November 27, 2008), at para.55

18 2009 G.W.D. 24–384

19 [2009] HCJAC 97

20 Ibid at para.4

21 Ibid

22 Ibid

23At para.55, as discussed above.

24Cadder at para.35

25 Ibid at para.33

26McLean at para.24

27Cadder at para.41

28 “only if the facts of the case make it impracticable to adhere to it” per Lord Hope, at para.41

29 Ibid

30 Ibid

31For example, as early as the 1880s, it was illegal in Scots law for an individual to be detained for longer than 110 days without trial (under the Criminal Procedure (Scotland) Act 1887)

32Cadder at para.50

33Cadder at para.40

34Cadder at para.48

35 Some of which are listed at para.47

36 Application No.7025/04, Judgment of September 24, 2009

37 Pischalnikov at para.69

38 Ibid at para.69

39 Pischalnikov at para.84

40 Salduz at para.55

41Cadder at para.48

42Application No. 22978/05, Judgment of June 1, 2010

43Cadder at para.51

44 Ibid

45Report of the Commission, Cmnd 8092 (January 1981)

46Cadder at para.51

47Belgium, France, the Netherlands and Ireland

48Cadder at para.49

49Cadder at para.48