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Solicitor Advocate Martin Morrow takes a look at the Supreme Court, the post-Cadder legal world, corroboration and the end of enlightenment
In November 2010, I wrote an article in The Firm entitled ‘England 1: Scotland 0’. It focused on the apparent clash between the Supreme Court based in London and our own Appeal Court in Edinburgh in relation to the application of the European Convention on Human Rights to our domestic law.
At that time, it seemed that the Supreme Court was shining a light into areas of Scottish legal practice that needed reform. My view was that the reforms enhanced our legal profession. The Supreme Court judges had brought into play some basic common sense principles, which seemed not to have found favour with our own Appeal Court.
They seemed to be interested in Convention rights: they had the ability to cut to the chase and determine applications made to them. They had little time for the banal arguments often raised by the Crown as a barrier to determining a point - most commonly that a human rights point could be defeated because it was not raised in line with a timeframe laid down by an administrative act of adjournal.
In the face of these changes, there developed a new barrier to access to the Supreme Court. Our Appeal Court started to hold that points raised were not really Devolution points at all, therefore the Supreme Court had no jurisdiction to hear the case. The Supreme Court simply stated they would decide in the final instance what was/was not a Devolution point.
I was hoping that, in line with this modern philosophy, a number of reforms in daily practice were beckoning, which would have been of assistance both to the accused and to the police in the administration of justice. It seemed that if a solicitor had to be present at interview there would be no more trials revolving around unsigned statements allegedly made to police officers by suspects in custody who had not had access to a solicitor. This was no bad thing for the police and have protected them for allegations of impropriety. Moreover, the new system was also a learning curve for defence solicitors going to police interviews. It was my experience that when I attended these interviews , numbers of suspects really did speak to the police, often directly in the face of advice to the contrary.
So where are we one year later? It appears that a reaction has set in to the Supreme Court and their progressive thoughts on Convention rights. An unintended consequence seems to have been the coming together in opposition to the Supreme Court by the Scottish Government on the one hand and the Appeal Court judges in Scotland on the other.
I have no political party affiliations. I was, however, appalled by the Governmental attack on the judgements from the Supreme Court which were relevant to Scotland and which were normally delivered by one of the two former Scottish Lord Justice Generals . To paraphrase Animal Farm, the mantra was “Scotland’s law good – English law bad”. This was an ill-considered, in my view, approach to the matter.
The Scottish Government simply took the view that London was attacking Scottish legal sovereignty. They didn’t consider that the Court, (albeit in England) was trying to apply European jurisprudence from Strasbourg. They were more interested in mud-slinging than in considering the merits of the rights that were being discussed. It was even reported that it was suggested that the Government would require to look to their continued funding of this court, in light of these judgements. This, if it was true, would be a thinly veiled threat to the constitutional doctrine of the “Separation of powers” and the Rule of Law, traditionally viewed as the distinguishing features of a democracy from a totalitarian state.
Meanwhile further up the Royal Mile the Appeal Court was facing playing second fiddle in Devolution matters to another court 300 miles away, the tenor of Lord Hope’s judgement in Cadder perhaps a little bit galling to read . The Scottish Government asked the Scottish Judiciary to take a look at “reviewing the situation”. .
Not surprisingly, the judiciary in Scotland were quick to praise the concept of the Supreme Court in London, and the experience of those who sat there. Minor adjustments, however, might be desirable.
Seizing on a comparison with England and Wales, they recommended that the Supreme Court be of course retained, BUT all matters referred to the Supreme Court in London would require to be done exclusively by the Appeal Court in Edinburgh. This would mean, that the Supreme Court could not accept referrals at their own hand. The informed observer might draw the conclusion that the Supreme Court would as a consequence be sidelined. In fact the observer might not notice any change in real terms to the status quo of the last 300 years in legal circles.
The effect of this recommendation, if it is implemented, is significant. It will mean that Edinburgh controls who and what legal points get to be argued in the Supreme Court in London. Individual (and troublesome ) applicants like Cadder, Holland, Sinclair, or Fraser, could be deftly and administratively swatted away.
It is understood this recommendation will be put in place shortly. That, to me is a matter of absolute regret. It fetters unnecessarily the discretion of the Supreme Court, and, more disturbingly removes a control on the Appeal Court, whose views in matters of Convention Rights thus far might on one view be encapsulated in the paraphrase -”wha's like us-damn few and they're no European!”
In the period from November 2010 to November 2011, the Scottish Government maintained its criticism of the Supreme Court. Importantly, we started to see signs that suggested the judges in London were being affected by this overt, hostile and entirely unwarranted criticism. Only recently Lord Hope indicated that there had been a misunderstanding in relation to comments allegedly attributed to him relative to Scottish /English interaction.
There appeared a series of judgements in 2011, where again the Supreme Court overturned judgements from Edinburgh. Nonetheless, these judgements were being hedged in by caveats issued by the judges in London. They went to great lengths to state that they had no desire to extend their sway over Scotland. They highlighted that Edinburgh dealt with in excess of 99.9% of all appeals. London dealt with about 10 cases a year; a very small number of cases that had to pass through a narrow archway to be considered.
It is significant to note that some of the appellants in 2011 were persons unlikely to receive much in the way of public sympathy, and again newspapers were full of suggestions that an ‘English’ court was undermining the rule of law in Scotland with these judgements. In Government, in print and by way of legal recommendations re future referrals to the court in London was under significant pressure.
Against this backdrop , the Crown then referred a number of cases to the Supreme Court, commonly referred to as “the sons of Cadder case”.
One of the questions which had been referred back to them was whether a suspect being interviewed by the police was in a materially different position if he was a suspect interviewed at home or at a police station. This was a surprising referral. A number of Sheriffs had given decisions in the courts in 2011, implementing Cadder and taking the view, to paraphrase Burns, that “A suspect is a suspect for a’ that”. They took the pragmatic view that what mattered was that the suspect was a suspect and that it didn’t matter whether he was being interviewed in a police station, at home or in a coffee shop. The judges in Cadder had highlighted that the reason access to a solicitor was so important was because rights of access had to be “real” and not “illusory”. It was therefore a surprise that in the case of Ambrose, in his judgement delivered in October 2011, Lord Hope seems to have distanced himself from these real rights. How has this happened?
A new mantra appeared. It was not apparently, the function of the Supreme Court to extend the jurisprudence of Strasbourg. If Strasbourg had wanted to give rights to suspects at home/in the coffee shop, and not at the police station, they would have done so. They had not done so and therefore the Supreme Court in London wasn’t prepared to do so without the express say-so from Strasbourg.
The Supreme Court in London pointed out that the possibility of differing whereabouts of a suspect had not been specifically considered in Strasbourg, but rather than facing up to the challenge of considering it and developing the law as all courts frequently do in other matters, they would wait for somebody in Europe to tell them what the law is. It was significant that the only person who seemed prepared to address the issue was Lord Kerr, from Northern Ireland.
If that was bad, worse was to follow. One of the other cases referred to them related to the fact that an accused person could waive his right of access to a solicitor. The question was, how could a court be satisfied that a suspect had voluntarily waived that right? How would the court be satisfied that the suspect knew what he was doing when he waived that right - perhaps in a matter of seconds, while possibly intoxicated, vulnerable and deprived of his liberty?
This is a very important concept. Very often the evidence that allows a case to proceed (always assuming the law of corroboration remains in place) is to be found in an admission made by a suspect to the police.
The ultimate irony now arose. The Lord Justice Clerk in Scotland, in the case of Judd, gave a judgement indicating that it seemed to him that a suspect could not really be regarded as waiving his rights of access to a solicitor, until he had some form of legal advice about the significance of waiving his rights. This seemed to be common sense because very often, particularly in assault cases, a suspect may wish to give his own version of events. That version of events can be dissected, a part of that version of events may indicate that there was some form of conduct which could amount to an assault upon the alleged complainer. It would then be for the court to be satisfied that the explanation given by the suspect around that statement exonerated him. If on the other hand, he made no statement, there would be no prosecution. There seemed to be signs of a receptiveness to European jurisprudence in this judgement. Doubtless London would apply some minimum safeguards and tell the practitioner the minimum requirements of waiver. Thank goodness for clarity.
This time the judgement from London was deeply disappointing. Once more the judges highlighted that the European Court had not expressly said that a waiver could occur only if a lawyer was present. As Europe had not said so, they were not going to say so, and they would again wait until a judgement from Europe to that effect was received.
Even worse, it would apparently be unhelpful to even try to provide guidelines. Where now the new broom sweeping through Scottish Law?
Everything would depend from circumstance to circumstance in each case. No minimum provisions set in stone. The guideline was fairness. The retreat from providing a legal framework which required to be met to constitute a valid waiver could not have been more comprehensive.
As a consequence, we are back to where we started. Instead of arguing that the content of a statement made to two police officers, outwith the presence of a lawyer, was not made at all or was unfairly obtained (with the usual imperceptible rate of success), lawyers, acting for an accused person, will have to argue that the waiver, again made outwith the presence of a lawyer, was not genuinely made at all or was unfairly obtained. So much for real and not illusory rights.
Once the fight about the waiver being improperly obtained is fought and lost we can fight over the admissibility of the content of the interview as we have for generations. “Plus ça change.......”
One is left with the feeling that the Supreme Court will for matters Scottish fade to obscurity. Statutory reform will close off access apart from that approved by Edinburgh. Development of the law will stay in Scotland. The Scottish Government will no longer require to continue its outspoken criticism of the Supreme Court. That Court in turn won't have to hedge in its Judgements with caveats, and can move on to something new.
The genie is back in its bottle. In fairness the tone of its judgements in October suggested the genie was tired anyway and would prefer to wait for Strasbourg to introduce further reform.
It may of course all become a red herring. There are proposals afoot which may abolish the law of corroboration. At that point we won’t need to bother with anything as difficult as interviews with suspects. One person’s word will be good enough to promulgate the prosecution. This is apparently progress.
Martin Morrow is a solicitor advocate at MTM Defence Lawyers, Falkirk