At 9:45am on Tuesday 26 October 2010 a bench of seven justices of the Supreme Court took their seats to deliver a judgment that would radically affect Criminal Procedure in Scotland. For decades police have had the right to interrogate detainees without there being any access to proper legal advice and representation for the individual detained by the police.
In England and Wales those arrested by the Police have had the right to seek legal advice before being questioned by the police since the passing of the Police and Criminal Evidence Act 1984. Scotland is far behind the times here. It cannot be argued that allowing the police to question a suspect without them being able to seek legal advice and representation is right, fair or just.
There was no way that, in light of the decision of the Grand Chamber of the European Court of Human Rights in the case of Salduz v Turkey that the current procedure as provided for under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. This was recognised by the Lord Advocate as she attempted to reduce the impact of the Courts decision by issuing emergency guidelines to the Police that allowed those in police detention the right to access a solicitor. We will leave aside the issues that this cause, as they are, for now, irrelevant. Had the Lord Advocate been confident that the Supreme Court would have upheld the Crown’s position there would have been no need for such a move. The only doubt in the minds of those in power, must have been, how far the Supreme Court would go.
The decision of Their Lordships is, in my opinion, the correct one to have made. This aspect of our criminal justice system was not representative of a criminal justice system seeking to lead the way and be recognised as a leading justice system attracting the admiration of commentators around the world.
I have on many occasions written my general views on the matter, so shall depart from that to look at the Bill being passed through the Scottish Parliament to alter the system and also look at the practical implications of the Cadder decision.
Firstly, the practical implications are clear for all to see. There are tens of thousands of cases pending in the Courts or currently being heard by Courts at all levels where the Cadder decision will apply. Those most at risk is where the Crown has sought reliance on evidence obtained during police interview from the accused without the accused having been able to first seek legal advice. Therefore, I suspect it will only be cases which were unaffected by the emergency guidelines are at risk. I have come to this conclusion on the basis that the guidelines allowed for those in police detention to consult a solicitor and it cannot be said to be fair to allow a person to rely on Cadder to have incriminating evidence they gave the police without having a solicitor present where they declined to seek advice from a solicitor.
Essentially tens of thousands of cases may collapse if the Crown has insufficient evidence out with that obtained under police questioning where no access to a solicitor was permitted to prove the case beyond reasonable doubt.
Due to the rules surrounding corroboration it is quite possible that the incriminating evidence was extra and where prosecutions that have been successful would have still been successful without such evidence the convictions should be safe and therefore, no miscarriage of justice has occurred.
It is hard to say exactly how many cases are affected and the courts wills imply have to look at each on a case by case basis and examine all the evidence lead and assess how critical the evidence obtained in police interview was to the conviction.
On the whole the Bill being passed as an emergency, upon brief reading, looks to be more or less satisfactory. It seems to be largely based on the principles established by the relevant sections of the 1984 Act in England and Wales.
There is one aspect of it that I would change. The Bill allows for detention of up to 12 hours, this I have no issue with. Six hours was clearly no longer going to be sufficient, especially in more complex and serious cases where a solicitor is requested. Based on rough calculations anything up to 4 hours of that time could be taken up with processing the suspect, informing solicitors, waiting for solicitors to turn up and for them to have a private consultation with their client.
What I do have issue with is the provisions relating to extension. In principle I have no issues with the police seeking more time to question an individual where they feel it is needed. However, I am of the opinion that the Court should be the one to decide whether it is actually needed or not. Under the proposed legislation another Police Officer designated as a Custody Review Officer (in practice this would be an officer of Inspector or above) would make the decision. In my opinion, 12 hours is long enough for the police to hold someone without having to justify the individuals continued detention to another authority.
Essentially, these changes are necessary and long over-due. I am pleased to see them finally being brought into Scots Law and will be in place as early as Saturday if the Government has the legislation passed as quickly as they wish. Simply because this is emergency legislation doesn’t mean that it should not be open to proper scrutiny. We must get this right if we are to avoid further cases before the Supreme Court on this matter. The Government have had since May to consider their response to all the likely eventualities of Cadder. As a direct result of that it should be expected that this legislation has been given significant thought and should therefore prevent further appeals to the Supreme Court.
The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill can be read here
The decision of the Supreme Court in Cadder v HMA can be read here
The statement from the Scottish Government can be read here
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