The High Court last night spectacularly ruled that a provision of recently enacted criminal detention legislation in the wake of the Cadder debacle is in itself not compliant with human rights legislation, and has been ruled as “not law”.

Last night’s ruling states that two new bail conditions introduced in the Criminal Justice and Licensing (Scotland) Act 2010 are not compatible with the provisions of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The decision is the latest in what has developed into a shambolic period for the administration of the criminal law.

Earlier this month it was found that neither the profession or the wider public had any significant awareness of the Government’s flagship summary justice reforms.

The day prior to that report, Lord Marnoch issued a scathing judgement which criticised the quality of the legislation emanating from the Scottish Parliament.

And only yesterday a report by the Holyrood Audit Committee highlighted concerns over the “quality and efficiency” of the criminal justice system.

And at the end of January, as Tommy Sheridan was released from bail, a radical attempt to impose bail conditions that would have barred him from speaking in public was lifted only two hours ahead of his release after his solicitor argued it was non-compliant with human rights legislation.



The newly inserted requirements obliged a suspect to participate in an identification parade and provide “any print, impression or sample” as a mandatory part of their bail conditions. They do not permit any judicial discretion.

The newly added sections -introduced as part of the post-Cadder efforts to retrospectively legislate to make arrest procedure ECHR compliant - “remove all elements of judicial discretion and supervision of the question whether the particular accused may be required to submit to evidence gathering or other investigatory procedures as a counterpart for his obtaining pre-trial liberty,” Lord Eassie said.

“To that extent we have come to the view that the inclusion of the condition in question as a mandatory condition on the grant of bail is incompatible with the rights secured to the citizen by Article 5 ECHR

“We are therefore constrained to the view that the amendment effected by section 58 of the 2010 Act is not compatible with the requirements of Article 5 ECHR and should to be declared, pursuant to section 29 of the Scotland Act 1998, to be "not law",” he concluded.

The effect of the decision is now that any accused compelled to attend an ID parade or give samples under the 2010 legislation can apply to the Supreme Court to have their subsequent cases appealed, as Peter Cadder did.

Lord Carloway’s review into the criminal law in the wake of Cadder proposed measures including the removal of the requirement to corroborate evidence, but was roundly criticised by The Faculty of Advocates and the Justice Committee.

Last night as news of the decision broke there was widespread condemnation of the newly introduced provisions from practicing criminal defence solicitors, advocates, solicitor advocates and observers.

"The time for sticking plasters is over," one said via twitter.

"The system needs entirely reworked and the substantive law codified."

One solicitor advocate accused the Holyrood Parliament of "unneccessary tinkering".

"We get the administration we deserve - can't even draft laws" said @dfscot.

The conclusions of Lord Carloway's review into the criminal law have not been implemented. The Justice Committee urged the Parliament to consider their reservations before taking any further steps.

Last night, no comment had been made on the decision by Justice Minister Kenny MacAskill or the Crown Office.

The decision can be read here.

8:00am Update:

The Scottish Government has now issued a statement stating that the Scottish Government and Crown Office "note the Opinion of the court."

"We will consider the implications of the Opinion carefully," it added.