Stushie over Salduz in the Supreme Court
As forecast here at the beginning of the year, the implications for Scots law of the European Court of Human Rights decision in Salduz v Turkey (Application No. 36391/02, 27 November 2008) that the presence of a lawyer at police interviews of criminal suspects is essential to avoid infringement of Article 6 ECHR (fair trial), came before the UK Supreme Court at the end of May 2010; and even before the case (Cadder v HMA) was officially decided (the due date is 20 October), the Crown Office instructed change in police interviewing practices.
Interim guidelines say that suspects being interviewed should be offered access to a solicitor for a private consultation, in person, in advance of the police interview. If the accused or the solicitor wishes the solicitor to be present during the interview then access should be allowed unless, once again, it is considered that there are compelling reasons why this should not be permitted. Any such reason should be clearly noted and detailed in full.
The guidelines also make clear that they are not intended to pre-empt the decision of the Supreme Court and are issued with the intention of protecting prosecutions pending the decision of the Supreme Court. However, it appears pretty clear that the Supreme Court indicated that it was against the Crown’s arguments in the Cadder case, and that the unusually long period before the court’s decision is announced is to be explained by its willingness to give the Crown (and the Scottish Government) time to work out how to adapt the Scottish system to a new world.
The big question is whether the court’s decision will be prospective only, or will be held to affect all convictions already achieved using the evidence from police interviews conducted without the presence of lawyers. If the decision has retrospective effect (as one would expect), then there may be questions about emergency legislation to deal with it. One possibility is that such retrospective legislation would have to be passed in the Westminster Parliament since, unlike the Scottish Parliament, it is not absolutely constrained in this regard by Convention rights. But another possibility is that generally criminal appeals have to be made within three months of the final finding of guilt; so, if the guidelines work as intended, by the time the Supreme Court issues its decision, most convictions procured using police interview evidence will no longer be appealable.
There are also issues about the compatibility of the Crown Office guidelines with solicitors’ professional code of conduct, and about legal aid provision. This is producing no doubt interesting discussions between the Justice Secretary, the Law Society of Scotland and the Scottish Legal Aid Board.
Assuming that the Supreme Court does rule against the present law and overturn the previous seven-judge decision of the Criminal Appeal Court (MacLean v HM Advocate 2009 HCJAC 97), there may be interesting implications for other parts of Scots criminal law, evidence and procedure, not least the rule requiring corroboration. One of the defences of the existing law on police interviews is that no conviction could be procured on such evidence alone; something else would be required to corroborate it. Given the importance of police interviews to the obtaining of many if not most convictions, the police and prosecution authorities may well feel that, if that possibility is lost or significantly reduced after the Supreme Court’s ruling, a different approach to the rules of evidence is going to be required. England provides the obvious model: no corroboration needed there, but suspects have access to lawyers in all interviews.