Cadder v HM Advocate

The Supreme Court held that the Crown’s reliance on admissions obtained in a police interview conducted while the detainee was deprived of access to a solicitor was incompatible with the detainee’s rights under article 6(1) read with article 6(3)(c) of the European Convention on Human Rights. The court treated the Grand Chamber’s decision in Salduz v Turkey (2008) 49 EHRR 421 as binding guidance: as a rule access to a lawyer should be provided from the first police interrogation unless, in the particular circumstances, there are compelling reasons to restrict that right.

The court concluded that the statutory scheme in sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995, as framed following the Thomson Committee’s recommendations, routinely denied that safeguard and was therefore incompatible with Convention requirements. It held that the Lord Advocate had no power under section 57(3) of the Scotland Act 1998 to lead and rely on such interview evidence when that reliance was incompatible with article 6, and accordingly the appellant’s conviction obtained with reliance on the interview evidence could not stand without further consideration.

The court overruled, in light of Salduz, the decisions in Paton v Ritchie and Dickson v HM Advocate and the decision in HM Advocate v McLean. It remitted the appellant’s case to the High Court of Justiciary for further procedure and limited the retrospective effect of its ruling so as not to reopen finally determined cases.

The appellant, a 16-year-old detained under section 14 of the Criminal Procedure (Scotland) Act 1995, was interviewed by police without access to a solicitor, made admissions and was subsequently convicted after trial in the Sheriff Court. He sought to appeal on Convention grounds that reliance on his interview breached his rights under article 6(1) and article 6(3)(c) and that the Lord Advocate’s act in leading that evidence was ultra vires under section 57(2) of the Scotland Act 1998.

Procedural history:

• Conviction in the Sheriff Court (May 2009).
• Application for leave to appeal to the High Court of Justiciary was refused at sift stages; the refusal was treated as a devolution issue for the purposes of para 13 of Schedule 6 to the Scotland Act and special leave to appeal to the Supreme Court was sought.
• The Supreme Court granted special leave and heard the appeal.

Issues framed:

1. Whether special leave was competent (determination of a devolution issue by the lower court).
2. Whether reliance on interview admissions without prior access to a solicitor was incompatible with article 6(1) and article 6(3)(c), in the light of Salduz v Turkey.
3. Whether the Lord Advocate’s act in leading such evidence was ultra vires in terms of section 57(2) of the Scotland Act 1998 and whether section 6(2) of the Human Rights Act 1998 afforded any defence.
4. Whether the court should limit retrospectivity of any ruling (prospective overruling or other temporal limitation).

Reasoning and conclusion:

The court analysed Salduz and Strasbourg jurisprudence and concluded that Salduz established a general principle applicable across the Council of Europe area: access to a lawyer should, as a rule, be provided from the first interrogation of a suspect, and incriminating statements obtained in custody without such access will in principle cause irretrievable prejudice if used for conviction unless there are compelling case-specific reasons to justify restriction.

The court considered the Scottish statutory scheme (sections 14 and 15 of the 1995 Act) and the Thomson Committee’s reasoning which had led to a system in which detainees were routinely questioned without an entitlement to consult a solicitor beforehand. It held that the scheme was incompatible with article 6 as explained in Salduz and that the Lord Advocate could not rely on section 57(3) of the Scotland Act 1998 to validate leading interview evidence in those circumstances, because section 14(7) could be read compatibly so as to preclude admission of such evidence.

Because the Supreme Court could not properly assess the prejudicial effect of the interview evidence on the verdict, it remitted the appellant’s conviction to the High Court of Justiciary for further procedure. The court also addressed temporal effect: while it declined to apply its ruling so as to reopen finally determined cases, it made clear that trials not yet finally determined must proceed on the basis that detained suspects should have had access to an enrolled solicitor before questioning unless compelling circumstances justified a restriction.

The appeal is allowed. Relying on admissions obtained in a police interview conducted while the detainee had no access to a solicitor violated article 6(3)(c) read with article 6(1). The Lord Advocate had no power, under section 57(2) of the Scotland Act 1998, to lead and rely on such evidence. The appellant’s conviction is remitted to the High Court of Justiciary for further procedure; the court limited retrospective effect so as not to reopen finally determined cases.

Conviction in the Sheriff Court (26-29 May 2009). Application for leave to appeal to the High Court of Justiciary was refused at sift stages (refusal treated as determination of a devolution issue under para 13, Schedule 6, Scotland Act 1998). Special leave to appeal to the Supreme Court granted; Supreme Court judgment [2010] UKSC 43 allowing the appeal and remitting the matter to the High Court. Linked and overruled prior High Court of Justiciary decision HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73.