If you thought Cadder was a storm in a teacup, think again. It is proving to be the turd that won't flush, and as solicitor advocate Martin Morrow explains, the long standing tensions between Scotland and neighbouring jurisdictions had their part to play in the story that is growing more heads than the hydra.

Cadder v HMA is arguably the most important decision in Scottish criminal law in the last 100 years. It lays down the procedure to be followed in every case where a suspect is to be interviewed by police officers in this country. It is the latest in a series of cases interpreting the application of Article 6 of the European Convention on Human Rights (the right to a fair trial) to existing Scots law.
In simple terms, it provides that in Scotland a suspect who is to be interviewed by the police is entitled to access to a solicitor ,prior to and during an interview. It is unimportant where he is interviewed, the important point is that he is a suspect in respect of a criminal offence.

Most people I know, brought up on a diet of police television programmes, took it for granted this was the case. In the rest of the United Kingdom it has been for many years. People were dismayed and often refused to believe me, if I told them that in Scotland interview without a solicitor present was perfectly lawful, that the interview did not need to be video or tape recorded, that any admission allegedly made did not need to be signed for in a notebook, or even written down. In some cases if the confession was detailed enough, then no other corroboration was necessary-the so called “special knowledge verbal.”

In 2009, when the Appellate court of the High Court of Justiciary was appealed to by Cadder, the opportunity to reconsider our law on access to a solicitor presented itself.

There is, of course ,no automatic right of appeal in Scotland. Any appeal has to pass an assessment of its merits in a sifting procedure. Cadder did not even pass the sift on the ground that Scottish law was settled . How then was he ultimately successful? A sudden change of heart perhaps?

The real story is not Cadder. It is the apparent friction between the judiciary in Edinburgh and the Supreme court (and its predecessor) in London, in their approach to the application of the Convention to Scottish criminal law .

It is important to understand that the legislation which introduced the Convention, created a mechanism for its application which meant that the Appellate court in Edinburgh was no longer the decisive court in determining these matters.. Edinburgh had always laid down Scottish criminal law and procedure. How would the new system work.?

The approach was perhaps no surprise. The court in Edinburgh has repeatedly determined Convention points, and refused leave to appeal its decision, apparently leaving Edinburgh in control of the application of Convention law. The problem for Edinburgh is that the rules allow the Supreme court to accept appeals for consideration at their own hand. They frequently do act this way, and the significant changes in Scots criminal law have nearly always arisen by this route. In consequence, the humble practitioner has come to realise that Edinburgh for these matters, has become “the court below”-the voice that really counts resonates from London.
 
It was not automatic that the two courts would take such polarised views of the Convention. There was a possibility that the opportunity would arise for the Convention to be viewed as a means of refining Scots law, where change might represent best practice. Scotland ,after all, was not slow to export our legal judgements, and to have them well received, across the globe. Foreign jurists had even been known to make pilgrimages to Paisley in search of the café that gave birth to the snail in a bottle case. Perhaps Europe would have something to offer in return? Apparently not.

The first divergence of approach between the courts related to the treatment of statements made by witnesses to police officers investigating alleged offences. These statements are important. They can be put to witnesses. They have evidential value.

Traditionally these were made available to the Crown but not the defence. The defence had to rely on precognitions, which could not be put to witnesses and had no evidential value. The Appeal Court re-affirmed this practice in McLeod Petitioner 1998. The flavour of the judgement was that the request for access to statements by the defence was wayward ,well meaning but misguided ,rather indicative of an inherent inability to grasp the natural order of things.

In the wake of the Convention the defence tried again. On this occasion they relied on the revolutionary European concept of Equality of Arms-known to us as an even playing field!

Our Appeal Court approved the existing practice and various arguments in support of the status quo. However the defence appealed to the forerunner of the Supreme Court. They were successful in the cases of Holland and Sinclair in 2005. The concept of even handed disclosure was born. What was disclosed to the Crown was to be disclosed to the defence. Nowadays disclosure is automatic, taken for granted and the world has continued to turn. The arguments in opposition raised in 1998 now seem antideluvian in 2010.

It seemed this might set a precedent, if a Convention point was lost in Edinburgh, there still was recourse to inviting the Supreme Court in London to accept referrals ex propriou motu.

However there came a new development. In Edinburgh the Appeal Court started to rule on Convention issues, often by refusing them and then holding that leave to appeal was refused because the issue raised was not really a Convention issue at all. Therefore the Supreme Court could not ex proprio motu accept a referral. Advantage Edinburgh.

The response from the Supreme Court was to the point -as laid down in McDonald versus HMA 2008 and reaffirmed in Allison versus HMA 2010 -the Supreme Court retained an appellate jurisdiction even where the lower court determined the devolution issue ,by refusing to consider the issue on the ground that it wasn’t really a devolution issue at all: because the decision making process of our Appeal Court was of itself a “determination” of the issue raised. Deuce.

It is worth pointing out that our Appeal court refused leave to Cadder to appeal to the Supreme Court against the refusal to pass him through the sift procedure. Perhaps the view was that as the sift was an administrative procedure, then it did not constitute a determination of an issue. It would appear that if that was the case then the Appeal Court had fallen into error because at Paragraph 12 of Cadder ,the Supreme Court delivered a reaffirmation of the position that there had been a determination of an issue in refusing to pass the case through the sift. Advantage London.

The difference in approach between the two courts was highlighted once more in the case itself. Cadder was based on the decision of 17 judges in the Grand Chamber in the case of Salduz versus Turkey. This decision reversed judgements of the lower European forums which had dealt with Salduz at first instance. The judgement seemed to reflect a departure from the proposition that Europe did not concern itself with the operation of Member States domestic law.

Essentially it provided that a suspect should have access to a solicitor prior to police interview. It seemed to lay this requirement down as a “sine qua non” for a fair trial. The court was uninterested in other domestic safeguards. Paragraph 55 of the judgement seemed to make this clear.

Not only this, but by the time Cadder was live in Scotland, there was something else to support this interpretation , there were subsequent European decisions which not only confirmed this interpretation of Paragraph 55 but developed a subsidiary series of judgements of cases about when and how this right of access could be waived.

How would our Appeal Court deal with this development which apparently flew in the face of the domestic law contained in Paton versus Ritchie 2000 and Dickson versus HMA 2001-a five bench decision?

The answer was to be found in HMA versus McLean 2009.Our Appeal Court court took a 2 prong approach. The starting point was to opine that while Paragraph 55 of Salduz might seem clear cut on one view, the use of the words “ as a general rule “ and words like “exceptionally” in the same paragraph meant that Paragraph 55 was actually equivocal in its terms. It felt Salduz could be interpreted as meaning that if other safe guards existed in sufficient numbers then access to a solicitor was not a pre-requisite.

Secondly (and on one view of it, adventurously,) the Appeal court seemed to indicate that even if Salduz was peremptory in its ruling; because it did not contain any consideration of Scots law, while it was worthy of respect, that was the best that could be said of it, and so the ratio of Salduz would not apply in Scotland. Our own law would continue undisturbed.

If this approach prevailed ,then it would provide a mechanism for our own and every other legal system to refuse to give effect to any European decision, which did not specifically refer to the law of that country in its preamble .

In Cadder at paragraph 29,the Supreme Court recognised that McLean was consistent with prior authorities but the question was whether they were still good law standing the reasoning of Salduz. They held that the emphasis of Convention jurisprudence was with the right not to self incriminate, and as a consequence the legal proposition that this right could only be meaningful if a suspect had access to a solicitor before interview. It was of no use at all that access to a solicitor came into play after an alleged admission was made.

In light of this, the Appeal Court interpretation of Paragraph 55 of Salduz was, as Lord Hope put it in Paragraph 40 of Cadder “untenable”. His frustration with our Appeal Court is perhaps exemplified at Paragraph 35 of Cadder when, in talking of the meaning of Paragraph 55 in Salduz he said the last sentence “could hardly be more clearly expressed” In Paragraph 40 and 41 of Cadder ,he highlighted that the wriggle room our domestic court was trying to identify amounted in reality to an attempt to justify a systematic departure from the principle of Salduz. He indicated jurisprudence across Europe had applied the principle in Salduz with immediate effect, that other European countries were re stating their law accordingly and that there was no room for a different approach by a country on “its western fringes” (Scotland).

Lord Rodger in his judgement is even more clear. He highlights in Paragraph 91 the real truth of the whole matter: the police have a better chance of getting evidence from a suspect if the suspect has no recourse to legal advice. All the post interview safeguards in the world can’t overcome this fact. Accordingly at Paragraph 93 given the determination of Europe to make the right not to self incriminate meaningful, he states “there is not the remotest chance the European court” would hold our domestic law Article 6 compliant.

He added for good measure “Strasbourg has spoken”. We have “no real option but to apply the law it has laid down. .The language of this judgement is abrupt and to the point, suggesting that we had better just buckle down to European jurisprudence, regardless of our own traditional approach to criminal law and procedure.

One immediate upshot is that the Supreme Court indicated there was no open doorway to enable past cases to be reconsidered. This is particularly unfortunate given the differing approach taken throughout Scotland by the Sheriff courts (which handle the bulk of criminal cases) from June to October 2010.. In the majority of Sheriff courts the approach pending the Cadder decision, was to push on and resolve cases on the application of existing law. This was despite the fact that the Crown who had advocated the retention of the status quo, did not even wait for the judgement, but instructed the police to allow access to a solicitor, if requested by a suspect ,with immediate effect. In consequence ,cases before the courts between June and October contained two differing police procedures, both apparently lawful, which procedure applied in each case being date dependent. Unparalleled!

There were a minority of Sheriffs who thought it prudent to await the outcome of Cadder. On a purely personal basis I could not see the point, in cases where the interview was required for a conviction, in putting ,civilian witnesses through the strain of giving evidence, in the knowledge that was all for nothing, as it was the worst kept non-secret that the Crown had lost Cadder. It would only be fair to say that my view met with a lot less than universal approval.

A second consequence of Cadder is that it is understood the Crown, undaunted, may argue the case is restricted to suspects detained under Section14 of the Criminal Procedure (Scotland) Act 1995 as amended. Cadder, of course, is concerned with the right of a suspect to access to a solicitor at the point of interview, not where they are interviewed. I have spoken to police officers who have suggested Cadder does not apply to questioning of a suspect in a police car, perhaps parked in a lay by as long as not yet in the curtilage of a police station.

These arguments turn a blind eye to the ratio of Cadder. It seems unimaginable that a suspect, who cooperates with the police voluntarily at home, has less rights than a belligerent detainee taken to a police station, or a murder suspect, in custody on a means enquiry warrant, therefore not detained but about to be questioned, has less rights than a murder suspect detained under Section 14. It is to be hoped that the Crown will depart from this line, given additionally the terms of the Criminal Procedure (Legal Assistance, Detention and Appeals ) Scotland Act 2010,amending the traditional detention procedure, and applying rights specifically to voluntary assisters of the police, in the capacity of suspect, regardless of where they may be.

It is suggested thirdly that as a consequence of Cadder and its effect on the admissibility of evidence, then the law of corroboration will require to be abolished. That is to say the requirement for what constitutes sufficiency will necessarily be lessened. This seems a knee jerk reaction. The pungent whiff of sour grapes lingers in the air.

It is open to suspects to waive their right to a solicitor. Moreover in about 70% of the interviews I have attended, the suspect has continued, despite legal advice, to continue to make highly incriminatory comments . The police are pleased with this development because the question of impropriety is removed. It will be almost impossible to challenge the interview as unfair, given the presence of a solicitor.

Lord Carloway is to conduct a review in some months time of the effect of Cadder. It is to be hoped that matters will have settled down and after consultation with those who actually provide assistance ,that radical surgery will be found to be unnecessary.

Perhaps however the friction is not yet resolved. The Justice Minister seemed to hint in the aftermath of Cadder ,that access to the Supreme Court may have to be looked at in Parliament all over again. He seemed unenamoured of the Supreme Court and that will perhaps be reinforced by their latest decision that this time our Appeal court was wrong to hold our legislation relative to placing juvenile sex offenders on the register without limit of time was Convention compliant . Watch this space

Martin Morrow