That Cadder v. HM Advocate judgment in full...

"They tugged on their robes, to their clerks gave a whistle,
And blew down Scots law like the down of a thistle.
We heard them exclaim, from the dizzy bench heights,
"Happy Cadder to all, and to all fair trial rights!"  

As guessed at last night, the United Kingdom Supreme Court have handed down their judgment in the Scottish appeal of Cadder v. H.M. Advocate in Cadder's favour. Reversing the judgement of the seven-judge bench in the High Court of Justiciary, the Supreme Court has held that the Scottish regime of police interrogation of a subject without access to a lawyer is contrary to the European Convention on Human Rights' provisions on fair trials, as interpreted by the European Court in the case of Salduz v. Turkey. Various press outlets are reporting the news and the implications of the Court's ruling. The Scottish Government have issued this news release in response. From a systemic point of view, perhaps most significant that the decision will not allow the general re-opening of past convictions and an engulfing flood of human rights appeals. A helpful press summary of the decision can be read here. For those of you who prefer to follow your own lights and have troubles with .pdfs, here is the Justices' full analysis in the case. 

  

JUDGMENT 

[2010] UKSC 43

Cadder (Appellant) v Her Majesty's Advocate (Respondent) (Scotland)

before

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lord Brown

Lord Mance

Lord Kerr

Sir John Dyson, SCJ

LORD HOPE (with whom Lord Mance agrees)

1. This is, in effect, an appeal against the decision of the High Court of Justiciary in HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73, which was heard by a bench of seven judges. The link between that case and the appeal is that the minuter in that case and the appellant, Peter Cadder, in this were both detained under section 14 of the Criminal Procedure (Scotland) Act 1995, as amended (“the 1995 Act”). This has given rise, in both cases, to the question whether the Crown’s reliance on admissions made by a detainee during his detention while being interviewed by the police without access to legal advice before the interview begins is incompatible with his right to a fair trial.

2. The minuter and the appellant were both interviewed by the police while they were being detained under section 14. They made admissions on which, in McLean, the Crown intended to rely at trial and which, in Peter Cadder’s case, it did rely in obtaining a conviction. In neither case did they have access to legal advice while they were in detention. Nor was a solicitor present while they were being interviewed. McLean had requested that intimation of the fact and place of his detention should be made to a solicitor. But he was not offered an opportunity to have legal advice before he was interviewed, nor did he request this. Cadder was asked whether he wished a solicitor to be contacted, and he replied that he did not. At no time while he was being questioned did he request access to a solicitor.

3. In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights held unanimously that there had been a violation of article 6(3)(c) of the European Convention on Human Rights, in conjunction with article 6(1), because the applicant did not have the benefit of legal assistance while he was in police custody. In McLean the Appeal Court held, notwithstanding the decision in Salduz, that the fact that legal representation was not available to the minuter did not of itself constitute a violation of articles 6(1) and 6(3)(c) read in conjunction. In its opinion the guarantees otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness. It approved its decisions in Paton v Ritchie 2000 JC 271 and Dickson v HM Advocate 2001 JC 203 (by a court of five judges) that the Crown’s reliance on admissions made by a detainee while being interviewed in the absence of a solicitor was not incompatible with the right to a fair trial. The appellant seeks to challenge the decision in McLean. He submits that the decision in Salduz requires this court to hold that there has been a violation of those articles.

4. It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure. Ever since the statutory power to question a suspect prior to charge was introduced by sections 1 to 3 of the Criminal Justice (Scotland) Act 1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Many more are ongoing or awaiting trial - figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency. The issue is one of law, as the court appreciated in McLean. It must be faced up to, whatever the consequences.

The facts of this case

5. At around 14.30 hours on 13 May 2007 the appellant was detained by the police at his home in Glasgow under section 14(1) of the 1995 Act following an incident in which Liam Tracey and his father John Tracey had been attacked by a group of youths. In accordance with section 14(6) he was informed that he was being detained on suspicion of serious assault, and he was cautioned in accordance with section 14(9). He made no comment, and was conveyed to London Road Police Office. He arrived there at about 14.45 hours. On arrival he was again cautioned in accordance with section 14(9). At about 14.49 he was informed in accordance with section 15 of the 1995 Act that he was entitled to have intimation of his detention sent to a solicitor, but he declined to have a solicitor contacted on his behalf. Thereafter, for a period of approximately 27 minutes commencing at about 15.03 hours, he was interviewed under caution by two police officers. During this interview he made a number of admissions with regard to the offences with which he was later charged. At 15.30 he was informed that he was no longer a detained person under section 14, and he was placed under arrest. At 15.35 hours he was cautioned and charged with various offences in regard to the incident. He made no reply to any of these charges.

6. On 27 August 2008 an identification parade was held at London Road Police Office. A DVD compilation showing an image of the appellant and images of other individuals was shown to potential witnesses. The complainer Liam Tracey identified the image of the appellant as that of his assailant. The complainer John Tracey failed to identify anyone. On 24 December 2008 an indictment was served on the appellant and two co-accused charging them with assaulting Liam Tracey to his severe injury and permanent disfigurement, assaulting John Tracey to his injury and breach of the peace.

7. The appellant went to trial in the Sheriff Court at Glasgow on 26 May 2009. On 27 May 2009 the procurator fiscal depute intimated that the Crown did not seek a conviction against the co-accused and the trial proceeded against the appellant alone. During the course of the trial the procurator fiscal depute led evidence from Liam Tracey, who identified the appellant as one of those involved in assaulting both him and his father John Tracey. He also led evidence from John Tracey who identified the appellant in court as one of those involved in the assaults. Evidence was led of the content of the interview of the appellant while he was in detention. An audio tape recording of it was played in full to the jury, and the jury were given copies of the transcript. In his charge to the jury the sheriff made reference both to the contents of the interview and to the dock identification of the appellant by John Tracey. On 29 May 2009 the appellant was convicted on all charges and on 26 June 2009 he was sentenced to 250 hours Community Service. The sheriff also imposed a compensation order for £500.

8. On 9 July 2009 the appellant lodged intimation of his intention to appeal against his conviction. On 12 October 2009 he lodged a note of appeal in which he sought leave to challenge his conviction on four grounds. Grounds 1 and 2 referred to the reliance by the procurator fiscal depute on the contents of his interview. Ground 3 was concerned with the sheriff’s directions in relation to the crime of breach of the peace. Ground 4 was concerned with the reliance by the procurator fiscal depute on dock identification evidence. In relation to grounds 1, 2 and 4 the appellant relied on article 6 of the Convention and section 57(2) of the Scotland Act 1998, and he gave notice that he intended to raise a devolution issue with respect to the issues raised in each of them.

9. By letter dated 10 November 2009 the Depute Clerk of Justiciary informed the appellant that the judge who was conducting the first sift had considered his application for leave to appeal and that it had been refused. On 19 November 2009 the appellant appealed against this refusal, supported by an opinion provided by his counsel, Mr Shead. By letter dated 27 November 2009 the Depute Clerk of Justiciary informed the appellant that his appeal had been considered by three judges at the second sift stage, and that it also had been refused. The following reasons were given:

“Although we have had regard to counsel’s opinion, grounds 1 and 2 are not arguable, standing the 7 judge decision in McLean. As to ground 3 it is not arguable, having regard to the particular circumstances of the alleged offence and the judge’s charge as a whole, that his directions were apt to confuse or that any miscarriage of justice could be said to have resulted. As to ground 4, it is not arguable, having regard inter alia to Holland v HM Advocate 2005 1 SC (PC) 3, that it would have been incompatible with the appellant’s Article 6 rights for the Crown to seek to rely on dock identification in the circumstances of the case.”

On 15 December 2009 the appellant’s solicitors wrote to the Depute Clerk of Justiciary asking for the case to be put out for a procedural hearing so that an application could be made for leave to appeal to the Supreme Court. By letter dated 23 December 2009 the Appeals Manager replied that this request had been considered by the Criminal Appeals Administration Judge and had been refused on the basis that, as the refusal of leave to appeal at the second sift did not amount to a determination of a devolution issue from which an appeal might lie to the Supreme Court, no further procedure was competent. The appellant then submitted an application for special leave to appeal to the Supreme Court under para 13 of Schedule 6 to the Scotland Act 1998.

The issues

10. The first three issues relate to the question whether it is open to this court to give permission to appeal. In the statement of facts and issues they are set out in these terms:

“1. Whether the decision dated 25 November 2009 by three judges of the High Court of Justiciary to refuse the appeal against the refusal to grant leave to appeal was the determination of a devolution issue. 

2. Whether the Court below has refused to grant permission to appeal to the Supreme Court of the United Kingdom

3. Whether, in all the circumstances, permission to appeal should be granted by the Supreme Court in whole or in part.”

The remaining issues are the substantive issues in the appeal. They can be stated, in simplified terms, as follows:

“4. Whether the Crown’s reliance on the content of the appellant’s interview was incompatible with his rights under articles 6(1) and 6(3)(c), having regard to the decision in Salduz.

5. Whether the act of the Lord Advocate in leading and relying on that evidence was ultra vires, having regard to sections 57(2) and (3) of the Scotland Act 1998 and section 6(2) of the Human Rights Act 1998.

6. Whether the act of the Lord Advocate in leading and relying on evidence of the dock identification of the appellant was incompatible with his rights under article 6(1) and thereby ultra vires in terms of section 57(2) of the Scotland Act 1998.

7. Whether the acts of the Lord Advocate referred to in issues 5 and 6, taken together, were incompatible with the appellant’s rights under article 6(1) and thereby ultra vires in terms of section 57(2) of the Scotland Act 1998.

8. Whether, if issue 5 is answered in the affirmative, the decisions in Paton v Ritchie and HM Advocate v McLean should be overruled with prospective effect only or with any other limit on the temporal effect of the decision.”

Permission to appeal: issues 1-3

11. As the history which I have narrated in para 9 shows, the appellant’s appeal to the High Court of Justiciary never reached the stage of a full hearing by the appeal court. It was dealt with on paper by means of the sift procedure under section 107(5) and (6) of the 1995 Act. But there is no doubt that this resulted in the refusal of the appeal and that, for the reasons that were explained in McDonald v HM Advocate [2008] UKPC 46, 2008 SLT 993, it amounted to the determination of a devolution issue for the purposes of para 13 of Schedule 6 to the Scotland Act 1998; see also Allison v HM Advocate [2010] UKSC 6, 2010 SLT 261, para 6, per Lord Rodger of Earlsferry.

12. As I said in para 16 of McDonald, the word “determination” in para 13 of Schedule 6 to the Scotland Act 1998 can include any decision which disposes of the issue in the lower court, including a refusal to consider the issue. I do not think that it would be right to say that the judges who conducted the second sift refused to consider the devolution issues which the appellant was seeking to raise. But they certainly did dispose of them when, for the reasons given, they refused his application for leave to appeal. Nor does the fact that the appellant’s application for leave to appeal was dealt with on paper by the Criminal Appeals Administration Judge create a procedural obstacle to his application to this court for special leave to appeal. His decision that the application for leave to appeal was incompetent, as communicated by the Appeals Manager to the appellant’s olicitors, was based on the view that the refusal of leave by the sifting judges did not amount to a determination of the devolution issues. This, for the reasons I have given, was a misconception of the effect of what the sifting judges had done. It

falls to be treated for the purposes of para 13 of the Schedule as amounting to a refusal of leave by the lower court. That being so, it is open to this court to decide whether it has jurisdiction to entertain the application for special leave.

Dock identification: issues 6 and 7

13. At the outset of the hearing the parties were informed that the court was satisfied that special leave to appeal should be given with regard to the devolution issues identified as issues 4, 5 and 8 in the statement of facts and issues. They are directed to the question as to the effect of the decision of the Grand Chamber in Salduz and whether the view of that case which was taken in HM Advocate v McLean can be sustained. Issue 6, on the other hand, is directed to the appellant’s complaint about the Crown’s reliance at his trial on the dock identification of himby John Tracey, who failed to identify him at the identification parade. 14. In Holland v HM Advocate 2005 SC 1 (PC) 3 the Board rejected the argument that the use of dock identification evidence in solemn proceedings must always be regarded as incompatible with the accused’s right under article 6(1) of the Convention to a fair trial. Lord Rodger said in para 57 that, except perhaps in an extreme case, there was no basis either in domestic law or in the Convention for regarding evidence of dock identification as inadmissible per se. There is nothing more to be said on that question. But the appellant’s complaint, as presented in his written case, is not that the evidence of the dock identification as such was inadmissible. His complaint is that the sheriff’s directions to the jury were inadequate, as he did not tell the jury that, standing John Tracey’s failure to identify the appellant at the identification parade, they had to consider whether they accepted his dock identification as reliable. In other words, his complaint is directed to the way this issue was dealt with by the sheriff when he was delivering his charge to the jury, not to the act of the Lord Advocate in leading and relying upon this evidence. The question as to the adequacy or otherwise of the sheriff’s charge is a matter that lies exclusively within the jurisdiction of the High Court of Justiciary. It does not raise a devolution issue w