Self-incrimination and the fruit of the poisonous tree: the Cadder rule

7 October 2011 by

Ambrose Harris (Procurator Fiscal), HM Advocate v G : HM Advocate v M [2011] UKSC 43 (6 October 2011) – read judgment

Reliance on evidence that emerged from questioning a person without access to a lawyer did not invariably breach the right to a fair trial under Article 6. The principle established by Salduz v Turkey (36391/02) (2009) 49 EHRR 19 did not apply to questioning outside a police station.

The Supreme Court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under Article 6. We posted previously on another referred case,  Cadder (Peter) v HM Advocate (2010) UKSC 43, where the Court followed the Strasbourg Grand Chamber decision in Salduz that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial. The difference here was that  the evidence had been obtained by questions put by the police otherwise than by questioning at a police station. The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz, applied only to questioning which had taken place when the person had been taken into police custody.

The Lord Advocate’s position was that Article 6 was only engaged, so that individual had a right to legal advice, where he was a suspect, in police custody, and the subject of police interrogation.

The Supreme Court’s judgment

In principle, the line as to when access to legal advice had to be provided before a person was questioned should be drawn as from the moment that he was taken into police custody. This was because it was only then that the suspicions against him are being seriously investigated and the prosecution case compiled; that was the point at which his Convention rights could be breached. It was obvious that the test would be satisfied when the individual had been detained and taken into custody and it had to also be taken to have been satisfied when he was subjected to the initial stages of police interrogation. The moment at which he was no longer a potential witness but had become a suspect provided as good a guide as any as to when he should be taken to have been charged for the purpose of Article 6(1).  An initial failure to comply with the provisions of Article 6 at that stage might seriously prejudice his right to a fair trial.

On the other hand, the mere fact that the individual had been cautioned would not necessarily imply that unfairness. There was nothing in Strasbourg jurisprudence which insisted that a person should have access to a lawyer the minute a person had become a suspect and was not in custody. The unreported case of Dayanan v Turkey (application no 7377/03, October 10 2009)  suggests in para 32 that an accused must have access to a lawyer from the moment he is deprived of his liberty, but this seems to go further than what the Grand Chamber itself said in Salduz . Such circumstances would only be a relevant factor when considering whether the individual was deprived of a fair hearing but no more than that.

The fact that incriminating statements had been made without access to a lawyer would not of itself mean that the person’s rights had been irretrievably prejudiced. In the instant cases, it would be to go further than the Strasbourg Court had gone, to hold that the individuals concerned were entitled to findings that the evidence was admissible or inadmissible because, as a rule, access to a lawyer should have been provided when they were being questioned. It would seem “quite wrong” for this court to interpret Article 6 of the Convention as laying down an absolute exclusionary rule of evidence that goes any wider than Strasbourg has already clearly decided to be the case: this was the application of the “Ullah principle” –  Lord Bingham’s well known aphorism in (Ullah) v Special Adjudicator [2004] 2 AC 323 at para 20.

The dissent

Lord Kerr did not agree with the majority view that vulnerability descends at the moment that one is taken into custody and that it is absent until that vital moment. In the absence of a declaration by the Strasbourg Court regarding the validity of a claim to a Convention right, it  was not  in his view open to the English courts to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg had not made such a declaration. It was the courts’ duty to address those issues when they arose, whether or not there was authoritative guidance from Strasbourg:

If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable.

Her Majesty’s Advocate v P (Scotland) [2011] UKSC 44 – read judgment

This was a related reference involving different facts which the Court considered separately, since it involved the extent to which evidence derived from a self-incriminatory statement is admissible – the “fruit from the poisonous tree”.

The following is based the Supreme Court’s Press Summary of the case:

The accused was indicted at the High Court of Justiciary on a charge of assault and rape. He had been detained and interviewed at a police station without access to legal advice.  His answers to some of the questions gave rise to incriminating evidence from a friend whom the police consulted as a result of what the accused had said. The accused submitted that his rights under Article 6(3) would be contravened if the Crown were permitted to elicit evidence of his police interview, that the evidence of his friend was incriminatory evidence which had been obtained as a direct result of his replies during the police interview, and that the Crown should not be permitted to lead this evidence.

Again, the Supreme Court was asked to rule on questions referred by the trial judge, which was essentially whether the Lord Advocate could lead and rely on evidence obtained from information disclosed during the course of a police interview with an accused person, without the accused person having had access to legal advice, or whether this would be incompatible with that person’s rights under Article 6(1) and (3)(c) of the Convention, having regard in particular to the decision in Cadder.

Judgment (References in square brackets are to paragraphs in the judgment.)

The Salduz principle is not restricted to admissions made without access to legal advice during police questioning (Gaefgen v Germany (2010) 52 EHRR 1). The question is whether the rule extends to evidence derived from a detainee’s answers but which can speak for itself, without it being necessary to refer for support or explanation to anything the detainee said in his police interview [9]. In this case, the statement allegedly made by the accused to his friend before offence was at least partly incriminatory, in relation to the fact of sexual intercourse taking place at the locus. But this of itself did not make it inadmissible. The assumption is that the police would not have obtained this evidence but for what the accused told the police when he was arrested. If that is the case, the question is whether the fact that the source of the friend’s information was the accused himself renders the friend’s evidence inadmissible [15]. The guiding principle in Scots law is Lawrie v Muir 1950 JC 19, which states that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution [17]. The law of England and Wales is to the same effect (Section 76(4) of the Police and Criminal Evidence Act 1984l. Ultimately the question is whether it would be fair to admit the evidence [18].

In Gaefgen, the Strasbourg Court noted that there is no clear consensus about the exact scope of application of the exclusionary rule. In particular, factors may influence the admissibility of such evidence, such as whether the incriminating evidence would, in any event, have been found at a later stage (independently of the prohibited method of investigation) [22]. Where the boundary lies between what the Convention requires to be automatically excluded because it is derived from what the person has said and what is not remains unclear [23], and there have been no other cases dealing with the issue since Gaefgen. Strasbourg has not, however, suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accused’s rights under Article 6(1) and (3)(c).

Regard can be had to the position in England and Wales, where, subject to the court’s discretionary power to exclude it under section 78(1), evidence derived from an involuntary statement which can be adduced without having to rely on that statement is admissible [24]. Assistance may also be found in the Canadian Supreme Court case of Thomson Newspapers Ltd v Canada (Director of Investigation and Research) [1990] 1 SCR 425, where attention was drawn to the distinction between evidence that simply would not have existed independently of the exercise of the power to compel it; and evidence derived from compelled testimony which is, by definition, evidence that existed independently of the compelled testimony [25]. This supports the conclusion to be drawn from what Strasbourg has said so far on this issue: that there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c). It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. It is another if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence in question. The question whether such evidence should be admitted has to be tested by considering whether the accused’s right to a fair trial would be violated by the leading of the evidence [27].

The Scotland Act, “true” devolution issues and the role of the Supreme Court in determining Convention points in Scottish criminal cases

These appeals concern the Supreme Court’s role as final appeal court on issues of Convention rights arising in Scottish criminal cases.  The principal purpose of imposing this task on the Supreme Court under the Scotland Act 1998 was to ensure that the Convention rights were interpreted and understood in the same way throughout the United Kingdom. The Supreme Court itself is at pains to emphasise that its jurisdiction is limited to a consideration of the devolution issue which is raised by each of these references, under para 33 of  Schedule 6 to the 1998 Act .  The Scottish High Court of Justiciary is the court of last resort in all criminal matters in Scotland.

To clarify the respective jurisdictions of the Scottish Court of Jusiticiary and the Supreme Court involving the application of human rights,  Alex Salmond earlier this year announced the creation of an independent review group to consider any improvements which could be made in the Scotland Bill (which received its second reading in mid September).  The final report, which was published on September 14, has not proposed any radical changes, indeed it recommends that an appeal from the High Court to the Supreme Court

ought to be open to any accused person claiming to be a victim of any violation of his or her Convention rights under the ECHR in relation to criminal proceedings irrespective of which “public authority” is alleged to have caused such violation (paras 27-30).


 The Supreme Court was particularly qualified to fulfill this role both because of its collegiate knowledge of the distinct feature of the various different jurisdictions, and because of the developing expertise of its members in the jurisprudence of the European Convention on Human Rights.

It is proposed that an appeal to the Supreme Court should be competent only where the High Court has granted a certificate that the case raises a point of law of general public importance.  This is because the appropriate form of appeal from the Scottish High Court to the Supreme Court should involve a procedure in which the superior court is asked to answer specific questions, rather than that of a normal criminal appeal.The true focus of the Supreme Court’s exercise of jurisdiction in this context is the relevant Convention right, not – as section 57 of and Schedule 6 to the current Scotland Act 1998 has made it – the ‘act’, or failure to act, of the Lord Advocate.

In reality, the Supreme Court deals with the references just as the review group recommends, rather than considering the quaint question of the acts or decisions of the Lord Advocate as a separate issue. The group recommends that the power of the Supreme Court should be more clearly limited to declaring whether or not there has been a breach of a Convention right and, if there has been, to saying why this is so. If there has been such a breach, the Supreme Court should simply remit the case to the High Court to allow that court to determine the appropriate disposal in the light of its existing powers.  So, the main recommendation in the report is that  the new Scotland Act should reflect is the distinction between Convention rights and real vires devolution issues, i.e. disputes as to whether legislative or executive acts are ultra vires because they go beyond the powers of the Scottish Parliament or Executive.

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