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

28 October 2010 by Rosalind English

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.

The question whether the Scottish police procedure breached the rights of defence, generally recognised in Article 6(1) of the ECHR, and more particularly in Article 6(3)(c), turned on the weight to be attached to Salduz v Turkey (2008) 49 EHRR 421, in which the Grand Chamber unanimously held that there had been a violation of the right to a fair trial under Article 6 ECHR because the applicant had not had the benefit of legal advice when he was in police custody. Careful reading of this judgment, observed Lord Hope, showed that the Grand Chamber

was determined to tighten up the approach that must be taken to protect a detainee against duress or pressure of any kind that might lead him to incriminate himself.

In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the appellant leave to appeal against his conviction. In effect, therefore, the present case was an appeal against the decision in McLean.

The fact that the Supreme Court allowed the appeal is illustrative of two points. The first is the increasing significance that the Strasbourg Court, and the courts in Council member states, attach to the privilege against self-incrimination. The second is the circumstances in which the UK courts will regard a decision from Strasbourg as sufficiently clear and accurate to be in effect binding on the higher appellate courts in this country.

The Privilege Against Self-Incrimination

Although not an express right in the Convention, this principle has been at the core of Strasbourg jurisprudence on the rights of defence since it was analysed at length in Saunders v United Kingdom in 1991.  The Supreme Court has signalled in this judgment that if there is any suspicion that a system of detention has been designed to extract compromising evidence from an individual in the absence of legal advice, that system will not survive the line of reasoning in Salduz and subsequent cases, irrespective of any other procedural safeguards.  Lord Hope noted, in particular, the lack of comparative jurisprudence on this issue when the Scottish protocol for police questioning was being devised prior to the 1995 Act.  But all this is with the benefit of hindsight, and the comparative jurisprudence, though impressive (and exhaustively followed through in the intervention brief by Justice in this case), says nothing about the  the availability of lawyers at all hours of the clock.  This latter objection has been anticipated by Lord Hope who deals robustly with the impracticability of such arrangements (paras 37-38)

Strasbourg Cases and Precedence

The starting point for precedence is Section 2(1) of the Human Rights Act 1998, which provides that a court which is determining a question in connection with a Convention right must “take into account” any decision of the Strasbourg Court. This does not of course mean that these decisions are to be binding in any way upon the UK Courts. But in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26, Lord Slynn of Hadley said that the court should follow any clear and constant jurisprudence of the Strasbourg court.There are degrees;  if there is a perception that Strasbourg has misconstrued UK law domestic courts will not follow their conclusion But when faced with a unanimous decision of the Grand Chamber, this was, in itself, “a formidable reason” for following it. And in his detailed consideration of the response of various contracting states to the Salduz decision, Lord Hope notes that a number of states have taken steps to alter their law to bring it into line with the Strasbourg approach. Furthermore the Court has frequently found Convention violations, against Turkey in particular, by reference to the “Salduz principle”. Strasbourg has not been prepared since deciding that case to accept that exceptional circumstances were present that could justify an exception to the principle laid down in that case; in other words, the writing was on the wall for the system of police questioning practised in Scotland.

And lest anyone should ponder whether a detainee has waived his rights under Article 6 if he declines a lawyer (as was the case with this appellant), Lord Brown offers this robust analysis of the position:

The Strasbourg jurisprudence makes plain that it is not sufficient for a legal system to ensure that a suspect knows of his right to silence and is safeguarded (perhaps most obviously by the video recording of any interviews) against any possibility that by threats or promises of one sort or another he may nonetheless be induced against his will to speak and thereby incriminate himself. It is imperative too that before being questioned he has the opportunity to consult a solicitor so that he may be advised not merely of his right to silence (the police will already have informed him of that) but also whether in fact it is in his own best interests to exercise it: by saying nothing at all or by making some limited statement. He must in short have the opportunity to be advised by a solicitor not to make incriminating statements despite whatever inclination he might otherwise have to do so.