Case comment: Cadder – Presence of a lawyer at police interview required by Strasbourg rights of defence

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 Read judgment

We  posted earlier on the Supreme Court’s ruling that  an accused person’s rights under Article 6 of the Convention are breached if the prosecution leads and relies on evidence of the accused’s interview by police, if a solicitor was not present for that interview.   Indeed Lord Hope thought it “remarkable”  that

until quite recently, nobody thought that there was anything wrong with this procedure. Ever since ..1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Continue reading

Straw should not apologise too quickly for New Labour’s civil liberties policies

Jack Straw, the former New Labour Justice Secretary, has marked the 10th anniversary of the passing into law of the Human Rights Act with an article in the Guardian.

There are two points of interest from the article. The first is that, by my reading at least, the article runs close to an apology for the previous government’s much-criticised anti-terrorism policies. Straw, who amongst other front line roles was Home Secretary from 1997 to 2001 and Justice Secretary from 2007 to 2010, says “It is hard to exaggerate the pressures that those with responsibility encounter when a population, or part of it, is scared.” This meant that the government were under pressure and “sometimes the same people who might have been seeking greater controls on the intelligence services will want to know why we didn’t have more intelligence”.

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Scots six hour detention without access to lawyer breached human rights convention

Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43 – Read judgment / press summary

The UK Supreme Court has ruled unanimously that Scottish criminal law, which allows a person to be detained and questioned by the police for up to six hours without access to a solicitor, breached the European Convention on Human Rights. The decision will not allow closed cases to be reopened but will affect cases which have not yet gone to trial.

The court ruled that whilst the Scottish High Court’s decision was entirely in line with previous domestic authority, that authority cannot survive in the light of the Grand Chamber of the European Court of Human Rights’ decision in Salduz v Turkey (2008) 49 EHRR 421 and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right.

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Detaining and deporting the mentally ill

Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 – Read judgment

This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.

This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.

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Human rights and judicial review in the past year – Part 4/4: Article 12, the right to marry

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here, part 2 here and part 3 here.

Today, in the final part of this series, I concentrate on recent cases involving Article 12, the right to marry and a couple of other notable cases. You can find previous posts on Article 12 here.


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Human rights and judicial review in the past year – Part 3/4: Article 6, the right to a fair trial

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here and part 2 here.

Today I concentrate on Article 6: the right to a fair trial (click here for previous posts on Article 6).

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Human rights roundup: Cuts cuts cuts, international human rights and QCs on film

For your weekend reading pleasure, some of this week’s human rights news, in bite-size form. The full list of our external links can be found on the right sidebar or here.

The Inevitable Racial Effect: Counter-Terror Stop and Search Powers – Human Rights in Ireland: Rachel Heron, a PHD candidate at Durham Law School, argues that stop and search power under section 44 of the Terrorism Act 2000 has failed to yield significant results, except one: it has provided a further example of how racially neutral laws have a seemingly inevitable racial effect. Our most recent post on stop and search, which has been the subject of a decision of the European Court of Human Rights followed by a climb-down by the UK government, is here.

Case Law: Bernard Gray v UVW – privacy injunctions and anonymity – Henry Fox – Inforrm’s Blog: Mr Justice Tugendhat has returned to the subject of anonymity in privacy actions. These cases consistently test the interrelationship between Article 8 (right to privacy) and Article 10 (freedom of expression) of the European Convention on Human Rights.

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