The Supreme Court decides Cadder

The long and much-anticipated decision of the UK Supreme Court in Cadder v HM Advocate was published on 26 October 2010 ([2010] UKSC 43).  As expected, the seven-judge court decides that the human rights of a person detained by the police without immediate access to a lawyer are thereby infringed; but the major hassle that might have occurred were the decision to have been fully retrospective is avoided by holding the judgment not applicable to already closed cases.

The UK Supreme Court press release reads as follows:


The question in this appeal is whether a person who has been detained by the police in Scotland on suspicion of having committed an offence has the right of access to a lawyer prior to being interviewed.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (“the ECHR”).

The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present.

During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted. In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean.

The Supreme Court unanimously grants leave to appeal and then goes on to allow the appeal. The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. The Supreme Court remits the case to the High Court of Justiciary for further procedure. Lord Hope (Deputy President) delivers the leading judgment, with which Lord Mance agrees. Lord Rodger delivers a separate judgment, agreeing with Lord Hope but adding observations of his own. Lord Walker, Lord Brown, Lord Kerr and Sir John Dyson SCJ agree with the reasons given by both Lord Hope and Lord Rodger.

The High Court of Justiciary’s decision in McLean was entirely in line with previous domestic authority: [29] That authority cannot, however, survive in light of the European Court of Human Rights’ decision in Salduz and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right: [35], [36], [38] & [70]. The exception applies only if there are particular circumstances in the individual case and does not allow a systematic departure from the rule such as that set up by the 1995 Act: [41]. The rule in Salduz is based on the right not to incriminate oneself: [33] & [67].

This court should follow Salduz. Indeed, it has no real option but to do so: [93]. Previous cases have established that the court should follow any ‘clear and consistent jurisprudence of the Strasbourg court’: [45]. Salduz is a decision of the Grand Chamber, now firmly established in the European Court of Human Rights’ case law: [48]. The majority of those member states which prior to Salduz did not afford a right to legal representation at interview (Belgium, France, the Netherlands and Ireland) are reforming their laws to bring them into line with the Convention’s requirements: [49]. The guarantees otherwise offered by the Scottish legal system (in particular corroboration) are commendable but are beside the point. They do not address the European Court’s concern, which is with self-incrimination: [50], [66] & [92]. The system of detention under section 14 and 15 of the 1995 Act was expressly designed to deny an individual, reasonably suspected of committing a crime, a right to obtain legal advice when questioned in the hope that, without legal advice, the individual would be more likely to incriminate himself during questioning: [91]. That view of where the balance is to be struck between the public interest and the rights of the accused is irreconcilable with Convention rights: [51]. There is not the remotest chance that the European Court would hold that, because of the other protections that Scots law provides for accused persons, the Scottish system could omit the safeguard of allowing legal advice prior to interview: [93].

The Lord Advocate could not rely upon section 57(3) of the Scotland Act 1998 to prevent her act of leading the evidence of the interview from being unlawful. Section 57(3) would apply where, because of another provision of legislation, the Lord Advocate could not have acted any differently or where she acted to give effect to another provision which could not be read in a way which complies with Convention rights. Neither applied here because of the drafting of section 14(7) of the 1995 Act: [54] & [55].

This decision does not permit closed cases to be re-opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of). The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. The Scottish Criminal Cases Review Commission, if it is asked to do so, will have to determine whether it is in the public interest for cases which have already been finally determined to be referred to the High Court, which will in turn have to decide how to deal with such cases, if a reference is made: [60] – [62]; [99] – [103].

Cabinet Secretary for Justice Kenny MacAskill issued the following statement following the publication of the Supreme Court's judgment:

"I note today's decision by the Supreme Court. It is a decision we did not seek but it is one to which we must respond.

"The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions. This issue is about legal advice at one step in the investigatory process.

"Today's judgement in the Supreme Court has gone against the unanimous decision last October by seven Scottish High Court judges at the Scottish Appeal Court that determined that an aspect of Scottish criminal procedure does not comply with the European Convention on Human Rights.

"We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly. But we cannot ignore the Supreme Court's decision.

"And while it necessitates changes to Scotland's justice system, these are changes that have been anticipated and planned for. For over a year, the Scottish Government, Crown Office, Scottish Legal Aid Board (SLAB), ACPOS and the Scottish Court Service have been preparing contingency plans to deal with all possible eventualities arising from this case. The Lord Advocate – in anticipation of an adverse judgement – issued interim guidance earlier this year.

"With Parliament's support we will be making swift legislative changes to protect the victims of crime and safeguard communities. The main changes will mean introducing a right of access to legal advice before being questioned, extending the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, powers to adjust legal aid eligibility rules and measures to ensure certainty and finality in concluded cases.

"We will be introducing this emergency legislation to Parliament on Tuesday – and with the support of the other political parties we can complete the parliamentary scrutiny and debate process during the course of Wednesday. We anticipate the Bill receiving Royal Assent by Friday.

"In addition to these necessary legislative changes, I am today announcing that Lord Carloway, a senior High Court judge, will lead a review of Scottish criminal law and practice in the aftermath of the Cadder decision. I have asked Lord Carloway to make swift progress with his review and report to me within months – certainly in time to allow legislation to be considered for the 2011-12 Parliamentary session.

"Our distinctive justice system is one which protects accused persons. However human rights also extend to victims and to all of the people of Scotland, and the Scottish Government and justice partners will continue to fight to ensure that the rights of the victims and indeed wider society remain at the forefront of the Scottish justice system."

The Lord Advocate also issued a statement, as follows:

“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.”

Scottish Parliament e-Petition: Justice for Megrahi

This is the title of an e-Petition submitted to the Scottish Parliament on 8 October 2010. 

The petition called on the Scottish Parliament "to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

The Scottish Parliament's Public Petitions Committee discussed the petition on 9 November 2010, and agreed to write to the Scottish Government asking what legal authority supported the statement that holding any inquiry into the case was beyond its power and authority, and in particular the inability of any inquiry to compel witnesses.  The petitioners, who gave oral evidence to the Committee, argued that there was no legislation restricting the Scottish Government's holding an inquiry, and that legislation existed under which witnesses could indeed be compelled to come before the inquiry.  The Scottish Government was aked to reply by 10 December 2010.

Tesco not buying into Scots law – yet?

The Legal Services (Scotland) Bill completed its parliamentary passage on 6 October 2010, including the controversial provision that will allow non-lawyer ownership of Scottish law firms to the extent of 49%.

While the Bill still has to pass the procedures required under the Scotland Act 1998 before it becomes law, its failure to do so seems most unlikely to this observer, although the possibility of challenge in the courts remains.

There remain questions, however, about whether Tesco, or even Waitrose (currently planning expansion in Scotland), are really interested in buying into the provison of legal advice to consumers in Scotland.  No sign yet of bids from the supermarkets or, even worse, the unchastened banks. 

Much more plausible are the rumours reaching the ears of Scots Law News that smaller Scottish firms are planning networks and link-ups, possibly even more, with which to respond to the new business environment in which they now find themselves. 

That seems a more rational response, and one much more likely to succeed, than battles to the death in the last ditch of an "independent" legal profession.  In the end it is what you can do for your clients that determines your business future.

See here and here for previous stages of the debate.

Elish Angiolini moves on

The Lord Advocate, Elish Angiolini QC, announced on 1 October 2010 that she would stand down from her post after the next Scottish Parliament elections, which will be held in May 2011.

Ms Angiolini's career as the first woman and solicitor to be, first, Solicitor General for Scotland and then Lord Advocate, has been tracked here, here and here in Scots Law News.  It is one of the most remarkable careers in modern Scots law – and it doesn't seem likely that it is over yet.  A career prosecutor who reached the very top of that particular tree and who has only just turned 50 will surely have further plans.

We can also enjoyably speculate about who her successor will be.  Will any change in the political colour of the next Scottish administration have an impact on the appointment, or will there be a promotion from within the Crown Office?  It will be recalled that Ms Angiolini was appointed to high office under the pre-2007 Lab-Lib Dem coalition but continued on in office as Lord Advocate when the SNP took power – a departure from past convention.  Our money is on an internal promotion, but we are notorious for our inability to foresee the future.

Interpreting constitutional legislation: the Imperial Tobacco case

Lord Bracadale's opinion in Imperial Tobacco Ltd Petitioners [2010] CSOH 134 (issued on 30 September 2010) upholds the validity of the Scottish Parliament's legislation prohibiting the display of tobacco products at point of sale and the use of vending machines to sell tobacco products.  Along the way he makes a number of striking remarks on the correct approach to the review of Acts of the Scottish Parliament.

Most significant is Lord Bracadale's recognition of the Scotland Act 1998 as a "constitutional statute", the interpretation of which is to be generous and purposive, bearing in mind the constitutional values which the statute was meant to embody.  "The court," says Lord Bracadale, "should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable" (para 3).  In construing the scope of reservations of matters from the devolved competence of the Scottish Parliament, "it seems to me to follow from the approach of listing individual reserved matters that each of them should be given a narrow reading; otherwise the specific nature of the approach would not have been necessary" (para 18).  In order to determine whether or not sections 1 and 9 of the Tobacco & Primary Medical Services (Scotland) Act 2010 (summarised in the opening paragraph above) fell foul of the reservation of "the sale and supply of goods to consumers" in Schedule 5 section C7(a) of the Scotland Act, it was legitimate to examine the travaux preparatoire of the 2010 Act, including reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied the Bill and statements by Ministers during the relevant proceedings in the Scottish Parliament.  "That review of the background materials, the surrounding documents and the parliamentary debates," Lord Bracadale concluded, "points very strongly towards identifying the purpose of sections 1 and 9 of the 2010 Act as being to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term. That purpose would not relate to a reserved matter" (para 48).  He went on to reject a further argument that the provisions in question were beyond legislative competence as modifying a rule of Scots criminal law as it applied to reserved matters or as special to a reserved matter, there being no rule of Scots criminal law being "modified" by the 2010 Act. 

Finally, Lord Bracadale turned to an argument that the 2010 Act modified Article VI of the 1707 Acts of Union and was thus contrary to Schedule 1 para 4(2) of the Scotland Act, which prohibits such modification of Article VI so far as it relates to freedom of trade.   Article VI reads:

"That all parts of the United Kingdom forever from and after the Union shall have the same allowances, encouragements and drawbacks and be under the same prohibitions, restrictions and regulations of trade and lyable to the same customs and duties on import and export and that the allowances, encouragements and drawbacks, prohibitions, restrictions and regulations of trade and the customs and duties on import and export settled in England when the Union commences shall from and after the Union take place through the whole United Kingdom."

Following Lord Hope's approach in Lord Gray's Motion 2000 SC (HL) 46, Lord Bracadale sought to place Article VI in its historical context, for which he relied on T C Smout's History of the Scottish People 1560-1830 , T M Devine's The Scottish Nation, the Records of the Scottish Parliament website, and Adam Smith's Wealth of Nations.  His conclusion is that Article VI was about establishing freedom of trade in the common market created by the 1707 Union.  But the 2010 Act did not go against the existence of a common market in the United Kingdom:

"The prohibition on modification of article VI contained in para 1 of schedule 4 to the Scotland Act is in any event restricted to modification of article VI so far as it relates to freedom of trade. The review of the historical context of the Acts of Union, the ordinary meaning of the phrase "freedom of trade" and what was said by the Secretary of State in the parliamentary debates on the Scotland Act, all taken together, lead me to conclude that the prohibition on modification of article VI of the Acts of Union contained in para 1 of schedule 4 to the Scotland Act is restricted to interference with the common market created by the Union. Understood in this way, the prohibitions and restrictions introduced by sections 1 and 9 of the 2010 Act do not interfere with the common market created by article VI of the Acts of Union. I did not find consideration of the Directive 2001/37/EC to be of assistance. In any event, the removal of barriers contemplated by it leaves open the possibility of member states introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals" (para 80).


Sound and fury renewed

As seemed possible at the time of our last post on this subject back in August, the group of US Senators pursuing an inquiry into the Megrahi release sent representatives to Scotland in pursuit of evidence in late September 2010.  Whatever light the trip may have cast, there was certainly little sweetness in its immediate aftermath.

The representatives met Scottish Government officials on 16 September and also the Labour Party spokesperson Richard Baker MSP.  The officials' initial claim that their meeting had been "amicable" and a "helpful exchange" seemed to be contradicted later when the lead US Senator, Robert Menendez, was reported as saying that the initial prognosis that Megrahi had three months to live was made, not by a cancer specialist, but by the prison GP.  There were also claims of evidence that Megrahi had started chemotherapy in July 2009 (i.e. pre-release) that was not merely palliative but designed to prolong his life, thus exposing as a "lie" the Scottish Government position that his illness had become untreatable.  The representative reportedly said that "they (the officials) contradicted themselves repeatedly and made illogical statements/conclusions that were almost laughable if the circumstances weren't so serious." 

The Scottish Government response was pointed:

"The senator's staffer has got both these issues entirely wrong, and the senate committee is misinformed.

As has been stated many times, and was said several times at the meeting between Scottish Government officials and the staffer earlier this month, the advice to the justice secretary came from Dr Andrew Fraser, director of health and care of the Scottish Prison Service, and the prognosis was his.

It was Dr Fraser's responsibility to prepare the medical report for Mr MacAskill, and Dr Fraser who concluded that his clinical assessment was that a three-month prognosis was a reasonable estimate, drawing on the work of a range of specialists and other Scottish health service professionals involved in Megrahi's care from when he was first diagnosed with cancer in 2008."



Supreme Court and English Law Commission to go?

The Daily Telegraph and the BBC published on 24 September 2010 leaked UK government lists of public bodies to be abolished or under review in the expected round of huge public expenditure cuts to be made in the autumn, the UK Supreme Court and the English Law Commission being amongst the group still up for review.

The lists appear to have been originated in mid to late August this year, so were already a month or so out-of-date by the time of their publication.  Scots Law News suspects that outright abolition is not on the cards for either body, but that both may be expected to do at least as much with less in future.

Your correspondent noted also the presence on the list of bodies under review of the Advisory Panel on Public Sector Information (APPSI), on which he has been Scottish Representative since 2005.  He is beginning to wonder if his membership of public bodies and aspirations to public service are good ideas, at least for the bodies concerned: so far, the Intellectual Property Advisory Committee and the Scottish Records Advisory Council are the ones to have bitten the dust.



A judicial website

Change in the Scottish judiciary following the re-establishment of the Scottish Courts Service under the headship of the Lord President was confirmed by the launch of their website on 20 September 2010.

The site is clearly informed by at least two things: the need for transparency in the age of freedom of information, and a desire to correct, as far as possible, public misperceptions of the judiciary and in particular the rationales and policies which underlie sentencing in criminal cases.

Scots Law News shares a general sense that this website is a Good Thing and a mark of progress in relations between the Scottish legal system and the rest of the world outside.  The test will be how well and regularly the site is maintained.  As the Scottish Courts website now illustrates all too well, a good start is good only for a very short time, and you have to move with your audience as it grows both more demanding and more sophisticated in the art of the possible.  But resources, ever more significant in the era of public austerity now upon us, will decide all in the end.


Lord Bingham of Cornhill

The death on 11 September 2010 of Lord Bingham of Cornhill, former Senior Law Lord and one of the architects of the still new UK Supreme Court, has been noted elsewhere in Edinburgh Law School's blawgs, but Scots Law News would wish to add a word or two of appreciation of a great judge and a fine man.

Your correspondent met Lord Bingham only twice but will always remember the first time in particular.  It was a dinner in a plush Westminster venue in the late 1990s at which the gathering, having fed and wined, was to discuss the future of the European Union.  Lord Bingham said little; but your correspondent foolishly allowed himself to be provoked into angry speech by the anti-European tone of many of the rather too self-satisfied and Anglo-centric other contributors around the table. 

That rant having had no discernible effect on the mood of the meeting, a post-prandial and despondent stroll in the direction of the St James' underground was interrupted by the sound of running feet behind; and there was Lord Bingham, empathetic and conversational while  properly avoiding anything European or difficult about the experience we had just shared.  We did however share the Tube to somewhere in west London, where his Lordship left me to continue my progress to a hotel by Heathrow from which I was due to depart for Edinburgh in the early morning.  A human moment for which your correspondent remains grateful; and one that to judge from obituaries here, here, and here was typical of the man.



The F-word in court: is it a record?

Lord Woolman may have set a new record for the number of times the F-word has appeared in a civil case judgment in his opinion in McCormack v Hamilton Academical Football Club [2010] CSOH 124, issued on 1 September 2010.

Mr McCormack had been sacked for gross misconduct as assistant manager of the football club after a mere two months in post.  His claim was for wrongful dismissal.  One of the major aspects of the alleged misconduct was Mr McCormack's swearing and in particular his regular use of the F-word in public and in the relative privacy of the dressing-room.  Narrating the evidence, Lord Woolman finds himself forced to use the word also, no less than six times.  There were also a number of other incidents in which Mr McCormack's speech and conduct showed himself not inclined to tone it down a bit when in the presence of a member of the opposite gender (the club physiotherapist was female).

Nonetheless Lord Woolman comes to the conclusion that Mr McCormack was indeed wrongfully dismissed and puts the case out By Order for assessment of the damages to be awarded.  There is however no elaboration on the meaning and significance of the F-word and its derivatives such as we find in the English passing off and cybersquatting case French Connection Ltd v Sutton [2000] ETMR 341 (the case also responsible for your correspondent's only use of the F-word in print: see Contemporary Intellectual Property: Law and Policy chapter 17).


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