The Cadder Case

15 April 2011: Cadder case implications lead to wider review

The implications of the Cadder case continue to be felt throughout the legal establishment. A recent consultation paper concerning Police arrest and detention, evidence requirements and possible limits on rights of appeal are all up for discussion in a consultation paper, published as part of a review under Lord Carloway.

The review was set up immediately following the Cadder decision in the UK Supreme Court last October, on the rights of suspects in police detention to legal advice, and the emergency legislation pushed through the Scottish Parliament altering the time limits for police detention and making changes to rights of appeal. Above all, the review is based on looking at the practical investigation of crime and what happens when a person is deprived of his/her liberty during that investigation

The review’s terms of reference are to look at the law and practice of questioning suspects in the light of recent human rights decisions, and the implications for criminal evidence; the extent to which the emergency Act may need reconsideration or replacement; and to make recommendations for further changes.

Covering the four main themes of key elements of custody, key stages of custody, evidence, and appeals, the paper poses 34 questions intended to help shape the discussions. Among them are questions such as: whether the requirement for corroboration should be abolished; whether the court should be allowed to draw an adverse inference from an accused's silence; what rules should govern police questioning; and when should a suspect’s right to legal assistance arise.

These are fundamental issues at the heart of delivering justice. MTM will be taking part in the consultation, promoting the interests of defence clients – just as the firm did in its public response to the issues around the Cadder case itself. The results of the review, which includes the consultation, will be published in the autumn with a list of recommendations.

9 March 2011: New rules for detention and arrests in Scotland – new rights for persons questioned by the police

Following the much publicised Cadder case, which turned on the issue of legal representation when an accused person is questioned by police, the Scottish Parliament brought in emergency legislation.  This has had a number of far-reaching consequences for anyone questioned by the police.

The legislation, which is now in force, is the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010.  Amongst other things the Act amends Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 which relates to the rights of suspects and arrested persons. 

Six-hour detention becomes 12-hour detention

Under the new legislation, the six-hour detention period is now extended to twelve hours.  So a person can now be detained in relation to a crime punishable by imprisonment and taken to a police station for a period of up to twelve hours.  After that time the person must either be arrestedor released.  However, in unusual circumstances the police can detain a person for a further twelve hours. 

New right to legal consultation

A person who is detained or arrested, and who is about to be interrogated by the police, now has a new right to have a private consultation with asolicitor before any questioning begins and is also allowed to have asolicitor present with them during questioning. 

A consultation can take the form of a telephone discussion where the solicitor is unable to attend immediately at the police station, or it can be a consultation with the solicitor in person at the police station.  The person in custody is also now allowed to have a solicitor present with them during thepolice interrogation and can ask for a private consultation with their solicitorduring the police interview. 

Rights when questioned at other locations and in other circumstances

The new rights to have a private consultation with a solicitor before the interrogation, and to have a solicitor present with the person during the interrogation and to consult with a solicitor during the police interrogation, also apply to people who are questioned by the police at other locations.

Specifically, the same rights apply to people who are questioned in their own home by police, and to people who attend the police station voluntarilyto assist the police with their enquiries.

A fairer system

What all this amounts to in MTM’s view is much fairer system for people being questioned. As we have pointed out in our contributions to the legal and media debate on the issues surrounding the Cadder case, it was previously all too easy for someone to incriminate themselves when being questioned without a solicitor being present.

The new legislation means that individuals are safeguarded against such eventualities by having the right to a solicitor to advise them. All of this makes for a much fairer system for people being questioned - people in such circumstances should always avail themselves of expert legal advice and representation.

24 October 2010: Supreme Court ruling bears out MTM’s warnings

A ruling by the new Supreme Court in London (Cadder v HMA) issued on 24 October 2010, means that thousands of criminal prosecutions currently going through Scottish courts are now open to legal challenge on the basis of one of the most far-reaching rulings for the whole of the Scottish judicial system. MTM has been warning of such a ruling for some time and outlining its consequences.

The ruling states that confessions obtained by the police cannot be used as evidence at a trial, unless the suspect was allowed legal advice from a solicitor beforehand. In the period leading up to the ruling, the firm was challenging hundreds of cases that were already underway in Scottish courts under interim arrangements. Previous convictions are unaffected by the ruling and are consequently not open to challenge in the courts.

The Supreme Court’s decision overrules a ruling by the Scottish Appeal Court (McLean v HMA), but upholds another previous ruling by the Grand Chamber of the European Court of Human Rights (ECHR) which decided that the human rights of an alleged member of the banned Kurdistan People’s Party (KPP) had been violated because the accused person had not had a lawyer present when questioned by the police.

In Scotland, an accused person has until now had no legal right to have a lawyer present to advise them when questioned by the police; this was unlike the position in England, where an accused person has had a legal right to have a lawyer present in such circumstances. The ruling by the Supreme Court in London, upholding the EHCR’s ruling in the Turkish case, means that defence lawyers in Scotland can now challenge all evidence obtained by the police from interviews with accused persons where they were refused legal advice beforehand.

MTM has pointed out in media interviews how thousands of cases going through the Scottish courts, including many cases such as rape and domestic assault, where there are often no other eyewitnesses present, are now open to challenge on the basis of how evidence obtained by the prosecution was gathered. The content of such interviews, which may include confessions, often forms the bedrock of the prosecution case together with eyewitness statements, where these are available.

MTM was one of the first legal practices to realise the potential significance of the Salduz case. In our view, the right to have proper legal advice before a police interview is an essential component of a fair legal system: there are just too many ways in which a person might unknowingly incriminate themselves. It should also be remembered that this can happen to people who might otherwise have been proved innocent.

Media Links

From the Herald: Scots courts face stampede of challenges after UK ruling:

From the Firm Magazine: England 1-0 Scotland

From the Scotsman: Scots Legal Upheaval, Page 2, Page 3

21 May 2009: MTM warns of new challenge to Scottish judicial system following ruling by the European Court of Human Rights

MTM has been interviewed by several publications and websites on the implications of the European Court of Human Rights' recent judgement on lawyers being present at police interviews, including the Scotsman, the Herald, The Journal of the Law Society of Scotland and PoliceProfessional.com.

MTM is warning that the ruling by the Grand Chamber of the European Court of European Rights could lead to the collapse of thousands of cases that are currently going through the Scottish courts. It is the firm’s opinion that the implications of the ruling could affect all cases where an accused person has been interviewed by the police. The Grand Chamber decided that the human rights of the individual concerned (Salduz) had been violated because the accused person had not had a lawyer present when questioned by the police.

MTM believes that the Scottish judicial system is now facing a potential challenge. In Scotland, an accused person has at present no legal right to have a lawyer present, to advise them, when questioned by the police; this is unlike the position in England, where an accused person has a legal right to have a lawyer present in such circumstances. The ruling in the Salduz case means that defence lawyers in Scotland could challenge evidence obtained by the police from interviews with accused persons when no lawyer was present. MTM estimates that thousands of cases going through the Scottish courts, are now potentially open to challenge.

MTM is one of the first legal practices to realise and act on the significance of the Salduz case and has been taking steps, in appropriate cases to challenge the use of police interview evidence in criminal trials. The firm has already prevented one serious trial from taking place until this issue has been resolved. Many more cases will also be affected by the ruling until the appeal courts consider the issues raised.

Article 6 of the European Convention on Human Rights makes explicit reference to the right to representation before and during a trial. The Salduz case from Strasbourg opens the door to many such challenges within Scotland. The route for such challenges is for the defence to challenge evidence used in prosecutions by raising a Devolution Issue in the local court in Scotland. An appeal hearing is likely to be held at the High Court in Edinburgh and, ultimately, in the Judicial Committee of the Privy Council in London.

Media Links

Neil Hay is interviewed by the BBC about the European Court of Human Rights' recent judgement on lawyers being present at police interviews.

Neil Hay is interviewed by several publications and websites on the implications of the European Court of Human Rights' recent judgement on lawyers being present at police interviews, including the Scotsman, the Herald, The Journal of the Law Society of Scotland and PoliceProfessional.com.