Cadder v Her Majesty’s Advocate (Scotland)

Article 6(1), read with article 6(3)(c), requires that a detained suspect normally have access to legal advice before the first police interview. The right may be restricted only for compelling reasons arising from the particular case. General safeguards within a domestic criminal justice system cannot justify routine denial of access.

Incriminating answers obtained without such access are, as a general rule, inadmissible. A prosecutor has no power to lead and rely upon them where the governing legislation permits a Convention-compatible approach. The rule applies to pending proceedings and timely appeals, but legal certainty prevents the reopening of finally determined cases merely because legal advice was unavailable.

The appellant was detained under section 14 of the Criminal Procedure (Scotland) Act 1995. He was interviewed under caution without first receiving legal advice and made admissions which the Crown used at his trial. He was convicted in the Sheriff Court at Glasgow. Leave to appeal was refused at both sift stages because the seven-judge decision in HM Advocate v McLean had upheld the Scottish procedure notwithstanding Salduz v Turkey.

The Supreme Court granted special leave on whether reliance upon the interview violated article 6(1), read with article 6(3)(c), whether the Lord Advocate had power to lead the evidence, and whether any adverse ruling should operate prospectively. It refused leave on the dock-identification issues because the complaint concerned the sheriff’s directions and lay exclusively within the High Court of Justiciary’s jurisdiction.

1. Appeal allowed unanimously. The Grand Chamber’s ruling in Salduz v Turkey established that article 6(1), read with article 6(3)(c), ordinarily requires access to a lawyer before the first police interrogation. A restriction is permissible only where compelling reasons arise from the particular circumstances. Even a justified restriction must not unduly prejudice the defence. Lord Hope gave the leading judgment, with which Lord Mance agreed. Lord Rodger delivered concurring reasons adopted by the other members of the court.
2. The rule is universal across the Convention states. It does not permit routine departure because a domestic system supplies other safeguards, such as caution, recording, a right to silence, corroboration or a short detention period. Those protections cannot remove the disadvantage caused when an unadvised detainee provides incriminating answers or information leading to other incriminating evidence. Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995, as then operated, were therefore irreconcilable with article 6.
3. Section 14(7) preserved the relevant law of admissibility and could be given Convention-compatible effect by excluding incriminating answers obtained without prior legal advice. The statutory scheme neither prohibited legal advice nor required the Crown to lead the answers. Section 6(2)(b) of the Human Rights Act 1998 and section 57(3) of the Scotland Act 1998 therefore afforded the Lord Advocate no protection. Under section 57(2), she had no power to lead and rely upon the interview evidence.
4. Paton v Ritchie, Dickson v HM Advocate and HM Advocate v McLean were no longer good law and were overruled. The appellant’s declining to have a solicitor notified did not resolve whether he had effectively waived a right to legal advice. That question depended upon all the circumstances and remained for the domestic appeal court if relevant.
5. The court could not give its ruling merely prospective effect. Section 102(2) of the Scotland Act 1998 did not authorise limitation of the consequences of an act by the Lord Advocate which section 57(2) rendered beyond power. The decision applies to cases not yet tried, trials in progress and timely unresolved appeals. Legal certainty nevertheless excludes finally determined convictions and appeals from reopening on this ground, subject to the distinct statutory review mechanism.
6. The Supreme Court could not decide whether the conviction should be quashed without assessing the remaining evidence and the possible effect upon the jury. The case was remitted to the High Court of Justiciary for further procedure. Special leave on the dock-identification issues was refused.

1. United Kingdom Supreme Court: Allowed the appeal unanimously on the article 6 interview-evidence issue and remitted the case to the High Court of Justiciary. It refused special leave on the dock-identification issues.
2. High Court of Justiciary: Three judges at the second sift refused leave to appeal. That refusal determined the devolution issues and was treated as accompanied by a refusal of permission to appeal to the Supreme Court.
3. High Court of Justiciary: A judge at the first sift refused leave to appeal.
4. Sheriff Court at Glasgow: Convicted the appellant on all charges after the Crown led his police-interview admissions. The sheriff imposed 250 hours of community service and a £500 compensation order.