Supreme Court Rules on Cadder Case, Not All Good News
26th October 2010
Today the UK Supreme Court pronounced an extremely important judgment with profound implications for Scots criminal law. The case is Cadder —v— Her Majesty’s Advocate, an appeal against conviction based on an argument that Scots police procedure breached his human rights, particularly Article 6 of the European Convention on Human Rights, the right to a fair trial.
(Technically, Cadder is an appeal against the High Court's refusal of leave to appeal, which was in turn based on another case, McLean —v— Her Majesty’s Advocate; for the full judgment please click this link.)
On 13 May 2007 Peter Cadder was detained by the police at London Road Police Station, Glasgow, under ss.14—15 of the Criminal Procedure (Scotland) Act 1995 on suspicion of serious assault, i.e. his involvement in an attack led by a group of youths on two individuals, being father and son. In accordance with standard practice at the time, he was interviewed under caution but without a solicitor present. During this process he made certain admissions, whereupon he was arrested and subsequently prosecuted.
In the prosecution the Crown relied on the admissions Cadder had made during interview, and on the strength of these admissions the Crown secured his conviction.
Cadder appealed, and ultimately his appeal reached the Supreme Court, where his case was argued on 24—26 May 2010, and today seven Supreme Court judges gave their decision, upholding Cadder’s argument and appeal.
The Court unanimously held there is “not the remotest chance” that police interview evidence taken while the accused had no lawyer present would not contravene the ECHR. Lord Hope said, “A right of access to a lawyer, which is implied in order to protect a right at the heart of the notion of a fair procedure under article 6, must itself lie near that heart.” Lord Hope is himself a Scots lawyer (one of two sitting on the Supreme Court) and former Lord Justice General and Lord President of the Court of Session.
The judgment will not affect cases that have already been finally determined. i.e. where the accused has been convicted and chosen not to appeal within the time-limit, or where s/he did appeal and the appeal has been disposed of.
However, the judgment will affect cases that have not yet reached their conclusion.
Cadder’s argument relied in part on the case of Salduz —v—Turkey, which involved similar facts.
This judgment will have wide-ranging implications for Scots criminal law. It will likely make cases significantly more costly to prosecute and defend, thus intensifying pressure on the Scottish Legal Aid Board and Scots tax-payers. Moreover, it may also catalyse further erosion of the corroboration requirement, itself an important safeguard for accused persons, which still exists in Scots law but not in English law.
This increased financial burden on legal aid may have a knock-on effect on civil cases, making it harder for members of the public to access justice in the civil courts.
Therefore, while Cadder upholds European law on human rights, it also causes other problems elsewhere in our legal system.