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

7 October 2011 by Rosalind English

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.
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Supreme Court on EU and ECHR proportionality – back to basics

27 June 2015 by David Hart KC

R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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Caped Crusaders and Princely Rights – The Human Rights Round-Up

19 April 2015 by Laura Profumo

Photo credit: The Guardian

Laura Profumo runs through the week’s human rights headlines.

In the News:

The Conservative party published its manifesto last week. The document makes for curious reading, writes academic Mark Elliott. The manifesto confirms the party’s pledge to scrap the Human Rights Act and to replace it with a British Bill of Rights, reversing the “mission creep” of current human rights law.

Yet the polarising references to “Labour’s Human rights Act” illustrate the Act’s failure to secure supra-political constitutional status, being tossed between the parties like a “political football”, writes Elliott.

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What to do about Climate Change: “an existential problem of planetary proportions.”

24 July 2025 by David Hart KC

On 23 July 2025, the International Court of Justice delivered an advisory Opinion on the “obligations of states in respect of climate change” from 15 judges, in 130+ pages. Its ruling was unanimous, with a strong closing flourish trailed in my title. There has been a great burst of favourable responses to the Opinion which was delivered yesterday, for instance the Center for International Environmental Law.

But what does the Opinion say, and does it matter?

The questions

The request for the Opinion had come from the UN General Assembly in March 2023. After a typically baggy “chapeau” of potentially relevant climate change and human rights treaties, the UN GA sought answers to the following questions

• What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?

• What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
• States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
• The peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

In December 2014, the ICJ heard oral submissions from 96 states and 11 international organisations (including the EU, the African Union, WHO, and various organisations representing small island states). Major emitting states such as the UK, the US, Russia, China, Saudi Arabia, and Kuwait made individual submissions. This response marks the importance that most UN states attached to this process.

Written transparency of the case is excellent: all those submissions, the written statements preceding them, and the underlying treaties and legal materials are to be found on the ICJ website here.

An ICJ advisory Opinion is just that – advisory. As the ICJ itself acknowledges, it has no binding force, but they may carry great weight and, as the ICJ hopes, “moral authority”. Such opinions are not for bruising fights between individual state parties. Their aim is that the ICJ contribute to the clarification and development of international law.

So how does this Opinion advance the sum of international law knowledge on climate change?

Extradition in “disarray”? – Amelia Nice

27 April 2016 by Guest Contributor

Aranyosi and Căldăraru [C-404/15 and C-659/15 PPU].

On 5 April 2016, the Court of Justice of the European Union (CJEU) ruled that the execution of a European Arrest Warrant (‘EAW’) must be deferred if there is a real risk of inhuman or degrading treatment because of the conditions of detention for the person concerned in the requesting state. If the existence of that risk cannot be discounted within a reasonable period, the authority responsible for the execution of the warrant must decide whether the surrender procedure should be deferred or brought to an end.

The cases concerned two totally unrelated and separate extradition requests: a Hungarian accusation warrant seeking the person for trial, the other a Romanian conviction warrant so the person sought could serve a prison sentence. The requested state in both cases was Germany.
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New report on worldwide human rights and democracy

30 April 2012 by Isabel McArdle

The Foreign and Commonwealth Office has launched the Human Rights and Democracy- The 2011 Foreign & Commonwealth Office Report, which aims to provide “a comprehensive look at the human rights work of the Foreign & Commonwealth Office (FCO) around the world in 2011“. The report makes for essential reading for anyone with an interest in human rights at the global level.

The report contains a section devoted to the Arab Spring, which it describes as being “about citizens demanding their legitimate human rights and dignity” and having “no single cause“. The report also comments on the role of human rights protection in safeguarding Britain’s national security and promoting Britain’s prosperity.

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Is Strasbourg law the law of England and Wales?

30 March 2017 by David Hart KC

R (o.t.a Minton Morrill Solicitors) v. The Lord Chancellor [2017] EWHC 612 (Admin)  24 March 2017, Kerr J – read judgment 

This exam-style question arose, in an attempt by solicitors to be paid by the Legal Aid Agency for some work they had done on two applications to Strasbourg. The underlying cases were housing, the first an attempt to stave off possession proceedings, and the second the determination of whether an offer of “bricks and mortar” accommodation to an Irish traveller was one of “suitable accommodation”. Both applications were declared inadmissible by the European Court of Human Rights, and thus could not benefit from that Court’s own legal aid system.

The major question turned on whether the Human Rights Act had “incorporated” the Convention. We all use this as a shorthand, but is it really so?

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Avalanche! Daily Mail on new year dishonour list for dodgy prisoner human rights article

31 December 2012 by Adam Wagner

Despite the Leveson Report, the Daily Mail’s brief flirtation with the Human Rights Act has not even lasted a month. This article by Home Affairs Correspondent Jack Doyle (Twitter: @jackwdoyle) is a weird one, even by the Mail’s standards. Here is the headline:

£500,000 a week in legal aid for prisoners’ human rights claims: YOU pay for them to seek easier life or early release

Clear, right? We are apparently spending £26m per year on prisoners’ human rights claims. And here is the first line:

Taxpayers are handing nearly £500,000 a week in legal aid to prisoners to help them make human rights claims.

That’s sounds like a lot of money to spend on prisoners’ human rights claims! But wait, there’s more…
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The biggest human rights stories of 2012 – Part 3

1 January 2013 by Adam Wagner

Happy new year! I hope that none of your new year’s eves were ruined by worrying when the next instalment of my year in review would arrive in your inboxes. Anyway, here we go with July to September.

If you need to catch up:

• Part 1 (January to March) and
• Part 2 (April to June)

Now on to Part 3…

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Rights in a time of quarantine – Law Pod UK

20 March 2020 by Rosalind English

Following his excellent exploration of the interface between human rights and the quarantine and movement restrictions adopted in response to Covid-19, biolaw expert Niall Coghlan kindly agreed to come on our podcast and expand on the subject. Whilst we have made every effort to get this episode on air as soon as possible, there are bound to be further laws and decrees being rolled out. References to the relevant Italian laws, the Latvian derogation and others can be found in Niall’s post of 17 March. Here are references to the most recent developments.

Will the Human Rights Act survive the May 6th election?

15 April 2010 by Adam Wagner

The three main political parties have now have set out their stalls on human rights in their election manifestos, and the future of the Human Rights Act is very much in the balance.

We have been following the arguments for and against a Bill of Rights, which has been proposed either as a replacement for or supplement to the Human Rights Act 1998.

After a period of uncertainty, now only the Conservative Party say they will actually replace the Human Rights Act, with both Labour and the Liberal Democrats committing to keeping it on the statute books. The Conservatives have not spelled out how or within what time frame their plans will take shape. Dominic Grieve, the shadow justice secretary, spoke to lawyers recently on the issue but provided little further detail.

The Human Rights Act 1998 came into force in October 2000, and despite approaching its 10th birthday, it still inspires strong views either in support or opposition. As Francis Gibb writes in The Times, “it… became derided by the Government’s own ministers as well as by the Conservatives as a “charter for the undeserving” and for criminals.”

The two parties which support keeping the Act may be reluctant to raise the issue over other more obvious vote winners, and as such it remains to be seen how much it will feature in debate leading up to the election. However, whether or not it becomes a key issue on the soap boxes, the fate of the Human Rights Act will be one of the important lasting effects of this election.

The manifestos can be found (in alphabetical order) below:

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The Round Up: Election Coverage, Domestic Violence and Free Movement

4 June 2017 by Sarah Ewart

IN THE NEWS

The news this week, though inevitably dominated by election coverage, has a lot going on for lawyers. We’ve sifted through it so you don’t have to, followed by our summary of the Advocate General Bot’s Opinion on free movement for dual citizens.
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Divisional Court quashes Palestine Action proscription: an extended look

23 February 2026 by Jonathan Metzer

The Divisional Court in R (Ammori) v Secretary of State for the Home Department [2026] EWHC 292 (Admin)(Dame Victoria Sharp P and Swift and Steyn JJ) has held that the proscription of Palestine Action should be quashed on the basis that the Home Secretary had failed to follow relevant policy guidance and had not struck a fair balance in respect of relevant rights under the European Convention on Human Rights.

The Home Secretary has indicated that she intends to appeal.

This ‘extended look’ article will examine the grounds on which the claim succeeded and evaluate the Home Secretary’s potential prospects on appeal (permission for which has been granted).

No human right to an hour’s minimum in the open air for “lifer” – Court of Appeal

20 December 2011 by Matthew Flinn

Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 – Read Judgment

The Court of Appeal has decided that a failure to provide a life sentence prisoner with a minimum of one hour in the open air each day did not constitute a breach of his human rights under Article 8 of the European Convention of Human Rights (“ECHR”).

Oliver Sanders of 1 Crown Office Row represented the Secretary of State in this case. He is not the author of this post.

Between 26 April and 2 October 2007, a period of 159 days, Mr Leslie Malcolm was detained in the Segregation Unit at HMP Frankland. During that time, he was provided with an average of 30 minutes in the open air each day. However, paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275”), which contained policy guidance for prison officers operating under the Prison Rules 1999, stated that he should have had the opportunity to have at least one hour each day in the open air.

When Mr Malcolm first brought his claim, he complained that not only had his human rights under the ECHR been infringed, but also that the prison officers at HMP Frankland were liable for misfeasance in a public office. Both aspects of the claim were rejected by Sweeney J at first instance, and it was only the human rights question that was considered on appeal.

The judgment of Richards LJ, in leading a unanimous Court of Appeal, is an elucidating one insofar as it breaks down and draws attention to the various questions which need to be addressed when a human rights claim under Article 8 is brought.
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The Round-Up – who’s on the Rights-side this election?

22 May 2017 by Poppy Rimington-Pounder

After one leaked manifesto and many accusations of plans to bankrupt the UK, we have finally been presented with the official pledges of the main parties. Indeed, the manifestos appeared to herald good news for the European Convention on Human Rights, to which the Conservative Party have thrown a lifeline.

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