Crown Office and Procurator Fiscal Service

Cadder v Her Majesty's Advocate

 

Today the Supreme Court issued its decision in the case of Cadder v HMA in which it considered the law and practice under section 14 of the Criminal Procedure (Scotland) Act 1995 of police interviewing detained persons in a police station without allowing them access to legal advice. The Court decided that this practice was incompatible with the European Convention on Human Rights.

 

This decision will have a significant impact on the Scottish criminal justice system; but it is one for which COPFS has prepared. Guidance issued by the Lord Advocate to police and prosecutors months in advance of the decision means that we have adapted our practice to guard against the possibility of a judgment of this nature and minimise, so far as possible, the risk to live cases.

 

In addition, the Lord Advocate argued, amongst other issues, before the Supreme Court that its decision should not apply retrospectively to completed prosecutions. We note that the Court has stated its decision does not permit the reopening of closed cases.

 

This very significantly limits the number of cases potentially affected by this judgment.

 

You can read what the Lord Advocate said after the judgment, below.

 

On this website, our aim is to answer any questions you may have resulting from the judgment which relate to the role of COPFS as the prosecution authority for Scotland. Please note that, although we aim to keep victims and nearest relatives informed of any developments in their case, we cannot speculate on the potential impact of the decision on individual cases.

 

For other issues relating to the judgment, including potential legislation and implications for defence lawyers and accused, you may wish to visit the website of the Scottish Government

 

We hope you find this information useful.

 

 

 

 

 

The case relates to procedures the police have followed since 1980 when interviewing people suspected of committing an offence. In terms of section 14 of the Criminal Procedure (Scotland) Act 1995, it has been common practice for the police to detain and interview suspects in police stations for a limited period of time (up to 6 hours), without providing access to a solicitor. Although suspects did not have to say anything in the interviews, anything they did say could be used in court in evidence against them.

 

In its judgment in the case of Cadder v HMA, the Supreme Court held that, following the European Court of Human Rights case of Salduz in November 2008 from Turkey, this practice violated the accused's rights under the European Convention on Human Rights. This decision overturns the unanimous decision of the Court of Appeal in the case of McLean which was decided less than a year ago.

 

The Court decided that a suspect who is detained has a right of access to legal advice from a lawyer in terms of Article 6 of the European Convention on Human Rights before he or she is interviewed by the police and that the prosecution cannot rely on evidence of any incriminating answers obtained by the police from a detainee who is questioned in a police station without access to legal advice.

 

Under the Scotland Act 1998, and the Human Rights Act 1998, the law of Scotland must comply with the Convention rights.

 

 

 

COPFS is the prosecuting authority for Scotland. We carry out this function within the existing law, which is made by Parliament and interpreted by the courts. In responding to the decision of the Supreme Court, we are continuing to work to:

Keep victims and nearest relatives informed of developments in individual cases affected by the decision;

Protect the integrity of existing and pending prosecutions; and

Adjust our working practices along with the police to comply with the judgment.

 

 

 

This judgment will have a significant impact on Scots law. However, the Court stated that the decision in this case does not permit the reopening of closed cases.

 

This significantly limits the number of cases which may be affected.

 

Cases where there is a pending prosecution

 

Guidelines issued by the Lord Advocate have significantly reduced the impact this judgment will have on pending and future prosecutions.

 

If you are a victim of an offence in relation to which there are ongoing prosecution proceedings, we will contact you if those proceedings are affected as a result of the Supreme Court's judgment.

 

If you have been cited to attend court as a witness, you should attend court on the date for which you are cited unless we contact you to tell you otherwise.

 

Cases where there has been a conviction

 

The Court has stated its decision does not permit the reopening of closed cases.

 

There are strict time limits within which an appeal must be lodged against a conviction. Convicted persons will therefore only be able to appeal convictions as a result of the Cadder judgment in a relatively small number of cases. Where they appeal, they will still have to satisfy the High Court that there has been a miscarriage of justice.

 

Where such a miscarriage is found to have occurred, the prosecution may apply to the Court to retry the case, if there is sufficient evidence without the interview evidence. In the case of Salduz itself, the European Court allowed a retrial as the remedy for the applicant.

 

We will carefully consider any case which may be affected, and vigorously support convictions, where appropriate.

 

If you are a victim in a case where there has been a conviction, we will contact you if an appeal is lodged and keep you informed of the progress of the appeal.

 

Please Note: In order to contact you, we will use the most up to date contact details we hold for you on our case files. If your contact details have changed, and you wish to be informed, please contact our Enquiry Point on 0844 561 3000.

 

If you know the Procurator Fiscal reference number, please have that ready when you call. Otherwise, information such as the date of the offence and conviction; the name of the accused; the nature of the offence; and the Procurator Fiscal's office which prosecuted the case will help us identify your case more easily.

 

 

 

 

We have adapted our practice months in advance to ensure that we could protect cases, so far as possible, from a judgment of this nature.

 

We took precautionary measures to minimise the risk to pending and future prosecutions in the event that the decision of the Court resulted in a change to the law in Scotland.

 

The Lord Advocate issued guidance to prosecutors in early 2009 to only use evidence of police interviews if this was essential for the Crown case. This has significantly reduced the number of cases potentially affected by the Cadder judgment.

 

 

In June, following the hearing before the Supreme Curt, the Lord Advocate issued interim guidelines to the police regarding access to a solicitor when there is to be an interview during the course of detention. These are available on our website. They remain in force and will continue to be reviewed to take full account of the Court's decision.

 

A working group was established with the Scottish Government, the police, the Legal Aid Board, and the Law Society to explore other measures that may be required for all potential outcomes that may arise as a result of the Supreme Court ruling.

 

 

 

Currently there are 13 appeals before the Appeal Court which relate to this issue, and 3,471 cases in which the issue has been raised (in the formal procedure known as a devolution minute).

 

The impact of the judgment on cases will very much depend on the facts and circumstances of each individual case. We have put in place robust monitoring measures which will assess the impact of this judgment, and we will therefore be able to report on this more fully in due course.

 

Live cases will be, or have been, examined to assess the importance of this police interview in a police station without a solicitor present due to the sufficiency of the case.

 

The guidance the Lord Advocate issued to police and prosecutors in advance will significantly reduce the number of cases affected by the judgment. We note, significantly, that the Supreme Court has stated its decision does not permit the reopening of closed cases. This further limits the impact of the judgment.

 

The Crown will continue to vigorously support convictions, where appropriate.

 

 

 

The Court has stated its decision does not permit the reopening of closed cases.

 

There are strict time limits within which an appeal must be lodged against a conviction. Convicted persons will therefore only be able to appeal convictions as a result of the Cadder judgment in a relatively small number of cases. Even where they appeal, they will still have to satisfy the High Court that there has been a miscarriage of justice.

 

 

Even if such a miscarriage is found to have occurred, the prosecution may apply to the Court to retry the case, if there is sufficient evidence without the interview evidence. In the case of Salduz itself, the European Court allowed a retrial as the remedy for the applicant.

 

We will carefully consider any case which may be affected, and vigorously contest convictions, where appropriate.

 

 

Lord Advocate 's Guidelines to Police remain in force?

The Lord Advocate's Guidelines remain in force and will be reviewed to take full account of the Court's decision.

 

We have discussed the Lord Advocate's Guidelines with the Scottish Legal Aid Board and the Law Society.

 

The Scottish Government is introducing legislation into Parliament to provide a legal right of access to a solicitor for detained persons, to extend the period of detention, and other provisions relating to the operation of appeals in light of the judgment.

 

For further information on legislative implications and legal aid, please go to the Scottish Government's website

www.scotland.gov.uk

 

Cadder v HMA - Statement from the Lord Advocate, the Right Honourable Elish Angiolini QC

 

The Supreme Court today announced its decision in the case of Peter Cadder v Her Majesty's Advocate.

 

After the judgment, the Lord Advocate, the Right Honourable Elish Angiolini QC, said:

 

"The Supreme Court's judgment in Cadder v HMA is a significant ruling for Scots law.

 

"Until today, the Scottish legislation regarding access to a solicitor prior to and during police detention was held to be compliant with the European Convention on Human Rights. Indeed Scotland's highest criminal Court of Appeal looked at this very issue in the case of McLean less than a year ago. In that case seven judges held unanimously at that time that Scots law and practice was compatible with the Convention requirements.

 

"Prosecutors work within the law made by Parliament and as interpreted and stated by the courts. Today's ruling in Cadder changes understanding of the law as set out in McLean, and so we will immediately adapt our working practices to this new legal landscape.

 

"I note that the Court has stated that its decision does not apply to cases that have been finally determined. This very significantly limits the number of cases potentially affected by this judgment.

 

"In preparation for the possibility of this change, we have been working with the police and the Scottish Government to minimise the risk to live cases. We have of course taken precautionary measures: in early 2009 I issued guidance to prosecutors, instructing them only to use admissions made by suspects who had not had legal advice before interview in a police station where this was considered essential for the Crown case. Earlier this year, following the hearing before the Supreme Court, I issued Guidelines to the police requiring them to provide access to a solicitor prior to and during interview.

 

"Unlike any other jurisdiction in Europe, Scots law requires two sources of evidence to support each essential fact in a prosecution. This rule of 'corroboration' presents a further challenge to prosecution in Scotland, which does not apply in this wholesale manner in other jurisdictions.

 

"The balance of rights for accused in Scotland will now need to be carefully considered. It must be ensured that the Convention rights of victims to have 'effective criminal sanctions in place' are maintained where their human rights are flouted by the criminal actions of another.

 

"In light of this, I welcome the announcement by the Cabinet Secretary for Justice of Lord Carloway's review of the laws of criminal procedure and evidence in Scotland following the Supreme Court's decision. I consider such a review important to ensure, as the Supreme Court itself recognises at paragraph 97 of its opinion 'that any revised scheme is properly balanced and makes for a workable criminal justice system'.

 

"The Crown Office and Procurator Fiscal Service will continue to work with the police and with the Scottish Government to protect the integrity of pending prosecutions."