Cadder as the dust settles
Quite apart from their specific interest as a major decision shaking the Scottish criminal justice system to its roots, the Supreme Court judgments in Cadder v HMA  UKSC 43 contain numerous points worth attention from a more general point of view.
First, the United Kingdom made no attempt to intervene in the preceding Salduz case in 2008, despite its (one would have thought) fairly obvious implications for the Scottish legal system. Were relevant eyes not on this particular ball at the time?
Second, when should a United Kingdom court regard itself as bound to follow a decision of the European Court of Human Rights? The answer seems to be that at any rate an unanimous decision of the Court's Grand Chamber (such as Salduz) should be followed; perhaps then the decision of a split Chamber is not binding. And certainly there is precedent, cited at para 45 of Lord Hope's judgment, that decisions of Sections of the Court which are based on misunderstandings or lack full consideration of law in the United Kingdom need not be applied. But in any event the Court itself had consistently applied Salduz and a number of ECHR member states which had not previously afforded a right to legal representation at police interviews of suspects were now changing their laws in the light of this jurisprudence. This suggested that the decision was not one upon which the Court could be persuaded to go back.
Third, both Lords Hope and Rodger go into the history of the rule in Scotland denying suspects in police custody the right to legal representation. Introduced in its current form by statute in 1980, the legislation followed recommendations in the Report of the Thomson Committee on Criminal Procedure in Scotland (1975). The Report said how –
"… criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights. [The solution] must recognise the realities of the situation, and take account of those police practices which are accepted as fair by the public including criminals although they may be technically illegal or at least of doubtful legality. (para 2.03) … We recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor."
Thus, given that the basis of Salduz was primarily a concern to protect the suspect against self-incrimination, the Scottish rule, being explicitly based upon the proposition that the accused must be given every chance to incriminate himself, could not possibly stand, whatever the other safeguards (such as corroboration) that might exist in the system.
Fourth, prospective over-ruling. As is well-known, the courts in the United Kingdom declare the law as it has always been, not change it. In effect, their decisions have retrospective effect. The fear in Cadder was that the decision of the Supreme Court would have the effect of invalidating every conviction achieved through the use of evidence from police interviews of suspects without a lawyer present on the suspect's behalf. Further, while the Scotland Act 1998 gives the courts power to remove or limit any retrospective effect of a decision that an Act of the Scottish Parliament is beyond legislative competence, there is no such power with regard to the acts of Scottish Ministers and the Lord Advocate. Lord Hope therefore thinks that a possible inherent power in a court to limit the retrospective effects of its decision cannot apply (paras 58-59). Instead, with Lord Rodger, he finds a solution in a principle articulated by Murphy CJ in the Irish Supreme Court in A v The Governor of Arbour Hill Prison  IESC 45: retrospectivity does not apply to cases decided under the previous understanding of the law that are now "closed". The new understanding applies only to cases that have not yet gone to trial, cases where the trial is still in progress, and appeals have been brought timeously but not yet concluded.
Discussing this point both Lords Hope and Rodger refer to the power of the Scottish Criminal Cases Review Commission (SCCRC) to refer closed cases back to the Court of Criminal Appeal on the grounds of a possible miscarriage of justice. The Justices say that it will be for the Commission to decide whether it is in the public interest to refer cases which involved the use of evidence obtained from police interviews of a suspect at which the latter had no legal representation, and for the Appeal Court to decide what to do if such a reference is made (paras 62, 103). This explains section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (passed by the Scottish Parliament in a single day (27 October)). It states two new rules as follows:
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
Where the Commission has referred a case to the High Court … the High Court may … reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
The apparent breadth of these provisions will, one hopes, be tempered by judicial realisation that such general words must be read in the context of the Act as a whole, i.e. as restricting any attempts to use Cadder in relation to closed cases before the SCCRC. We shall see.
Finally, the Supreme Court decision has cemented that court's unpopularity with the Scottish judiciary, at least so far as its jurisdiction in devolution issues and criminal law matters is concerned. It was not perhaps a coincidence that on 24 September 2010 the Advocate General for Scotland (Lord Wallace of Tankerness, QC) launched a short "informal" consultation on the Supreme Court's jurisdiction over the decisions of the Lord Advocate (closing date 22 October). An Expert Group chaired by Sir David Edward is now deliberating on the matter. The outcome of the consultation and the deliberations of the Expert Group is not known at the time of writing, but one might have thought that the Scotland Bill provided a convenient vehicle for implementing any change to the present law that may be thought needful.