28 October 2010

Holyrood's Cadder Act ~ “Imprisonment is Freedom”

On Tuesday, the United Kingdom Supreme Court handed down their judgment in the case of Cadder v. H.M. Advocate. Later that day on behalf of the Scottish Government, Cabinet Secretary for Justice Kenny MacAskill introduced the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill to the Scottish Parliament. Wednesday saw Holyrood stay up late in order to pass the Emergency Bill through all three stages in a single sweep. As I alluded to in this morning's post, regrettably I've not been able to commit the proper attention to how parliament has responded to the real challenges presented by the UK Supreme Court judgment. Quite reasonably in my view, many folk are extremely concerned about the largely unscrutinised implications of this hasty legislation, which will impact almost immediately on the liberty of the subject and the powers of Scottish police. It would seem exceedingly paradoxical if the upshot of a judgement predicated on the right to a fair trial effectively diminishes the rights of suspected persons. While I certainly intend to return to the issue when I'm better informed about what transpired in the chamber and what was agreed, I thought it might be interesting and helpful to canvass a range of views on Cadder and the response of Scottish political institutions. Up until now, bracketing quotations, everything you've read on this blog has been composed by yours truly. In a happy break with that tradition, I'm pleased to be able to host this  guest post from a practising Scottish solicitor, who is highly critical of the Bill passed so summarily yesterday by Scottish Parliamentarians.

Holyrood's Cadder Act ~ “Imprisonment is Freedom”. 
Guest post by Highland Lawyer

Before commencing this rant, a full disclosure. I am a practicing solicitor, who has worked in many locations in Scotland before settling in the North. Unlike my host Lallands Peat Worrier who is clear as to his political affiliations, I would declare myself to be a “crossbencher” - I support no particular party and will support or oppose policies or actions of any based on my personal views.

I entered and remain within the legal profession with the goal of promoting justice. Justice is not necessarily the same as law, but good law is law that gives fair and just results. I therefore feel outraged at the passing of the Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Bill, following on the from the decision of the United Kingdom Supreme Court in Cadder v HMA.

The case of Cadder was an appeal on the basis of Human Rights, claiming that the existing Scottish practice in the detention of people before being charged with a crime, and more specifically not giving detained people a right to consult with a lawyer, was contrary to Human Rights. The Supreme Court (successor to the House of Lords Court) upheld this point.

To explain the procedure before the Cadder decision: In Scotland, police had legal powers to detain (i.e. hold in custody) a person in connection with the investigation of a crime for up to 6 hours. At the start of detention, the police were required to caution the detainee as to their right to remain silent, then could ask questions. The detained person had no legal obligation to answer anything beyond their personal details, and after the 6 hours the police needed to charge the person with a crime or release them. While detained, the person had a legal right to have a solicitor informed about the detention, but had no legal right to consult with the solicitor. It is this last point that was the subject of the appeal.

Bear in mind, in the Scottish criminal law requires corroboration of evidence - it is impossible (unlike in many other jurisdictions) to be convicted solely on a “confession” made during detention without other evidence to back this up.

The Court ruling given was that detention, when statements give may be used in evidence, is contrary to Human Rights unless the detained person can consult with a lawyer.

Unusually, after hinting this was likely to be the decision the Court delayed giving its final judgement for a considerable time to allow the Scottish authorities to take steps to change the position for future detainees. The Crown Office immediately gave new guidelines to the police that all detainees were to be given access to a solicitor during detention. Much running around by Solicitors and the Law Society of Scotland, and by the Scottish Legal Aid Board ensued, to allow interim arrangements for Solicitors to give advice to detained persons. All parties then settled down to work out long term arrangements.

It must be noted that during these interim arrangements all detained persons had the opportunity to consult with a lawyer. Some chose not to exercise this right. In probably the bulk of the cases where they did, the Solicitor advised that the person had a right to remain silent, and should therefore exercise this right. Therefore the vast majority, if not all, of cases started during this interim period will have complied with the subsequent ruling of the UK Supreme Court.

During this period various problems and potential solutions for the long term arrangements were raised and discussed by various parties. For example, if a solicitor is present during an interview, and the detained person makes a statement that they later retract the persons own solicitor could be called as a witness by the prosecution. In the past this has not been a problem because when a solicitor became involved it was not longer possible for the police to question the accused person.

What advice a solicitor can usefully give on detention was also considered. The existing position, where a solicitor is instructed once a criminal charge is made, means that a solicitor can advise on whether the accused has done what is stated, whether they have done something else, whether their actions are legally justified, or simply if what is charged is completely factually wrong and what can be done to prove this. As part of this the solicitor can obtain “disclosure” from the prosecutor, sight of all the evidence collected to be used in the prosecution. On detention, the detained person might not even know what the alleged crime is, the solicitor has no idea of what evidence may exist on either side, and the safest advice will almost always be “you have a right to remain silent, use it”.

The issue of whether compliance with the ruling could be achieved by disallowing the use of statements made during detention was raised - the person does then need a solicitor because nothing they say can be self-incriminating, and can safely answer any and all questions raised.

All of these points were then blindly ignored by the Scottish Parliament when within a day of the judgement they passed “emergency legislation”. One part was straightforward - all detained persons now have the legal right to consult with a solicitor. Had that been the whole of the legislation then all would have been right in the world.

However, they then also added a provision so that instead of being detained for 6 hours only, the police can extend this for up to 24 hours. An amendment was tabled to make it a requirement that such extension would require to be approved by a judge, but this was brushed aside. The whole Act was passed in an afternoon, instead of the many months usually required to make laws. There was no consultation with any body, whether experts or general public; it was not something the general public were even aware of let alone demanding. There was no advance warning, no second thoughts; there is of course no second chamber to reconsider points, and the committee system that is supposed to give special scrutiny to legislation details was bypassed by having a committee of the full chamber. Just a complete fiat by the Parliament, and all done before the Scottish people are aware.

No notice was taken of the inconvenient fact that during the past few months when Crown policy was to require police to allow detained persons to have advice from a solicitor, there appear to be no reported cases where a person wishing such advice was not able to receive it within the existing 6 hours time limit.

An important point to remember is all detained persons are not guilty. As matter of law no-one is deemed guilty until convicted, under the presumption of innocence. However, logic dictates that some people detained will in time be convicted. Equally, some will be found not guilty, and some will never even be charged. Therefore this change involves innocent people being held by the police for a full day. In the past courts have often used a few hours detention as punishment for person showing contempt of court. If a few hours is punishment, what is a day? All police powers require a balance between inconvenience to individuals against the needs of dealing with crime. Being held for 6 hours is an inconvenience, it may even be a massive inconvenience, but it can be justified for the public good. What justification is there to imprisonment without charge for a whole day, wholly on the say so of police officers with no evidence? If there is evidence why is the person not charged?

Imagine, you travel away for a party. You have a good time, and as you go for your train home on Sunday, you are detained by the police - they have had an accusation of serious assault by you. You know nothing about this, but are taken off to the cells. You consult the duty solicitor, who has no details about the alleged assault, and therefore tells you to exercise your right to silence until you know what you are talking about. You stay in the cells for 12 hours. The police then tell you that they are holding you another 12 hours. Finally you are taken to the interview room, where you are questioned; it emerges that that you were nowhere near the place this assault took place, you consult again with the duty solicitor, tell the police where you were and who you were with. They stick you back in the cells. A few hours later they come back - your story checks out, it must be mistaken identity, you are free to go. You then have to travel home and on Tuesday morning explain to your employer that you weren’t in on Monday because you were in the cells. You lose a days pay or holiday, and have no right of compensation against the police since they were “only doing their job”. Has your Human Rights been less infringed by having access to a solicitor?

Even on a purely economic argument, imprisonment for a day requires “legalised” police cells, with more facilities than for a short detention. In many parts of Scotland there are a shortage to these facilities - do we really need to spend millions to create more of these, or do we propose shipping innocent people about the country to appropriate detention facilities? Of course being able to lock people up longer reduces the rush on the police to gather evidence quickly, so perhaps some overtime payments can be reduced as officers can knock off and carry on in another shift, but how much will that save?

And for those who have in fact committed a crime: the Scottish system has the 110 day rule, that any person charged and imprisoned pending trial must have their trial commence within that period. Of course we can now lock people up before charge, and that doesn’t count so…

So we have the bizarre situation where due to a ruling that the Scottish criminal system does not fully protect the Human Rights of detained people, people can now be locked up for much longer. No consultation, no explanation, just more time in the cells, cheers very much. Truly we are living in a Blairite society - one sharing the characteristics written of by Eric Blair under his name of George Orwell. In “1984” his government declared “War is Peace, Ignorance is Strength”; the Scottish Parliament has added another phrase to that “Imprisonment is Freedom”.


  1. I don't really understand much of this but you seem to be suggsting that everyone who is detained is automatically going to be detained for a full 24 hours. Surely that is just the longest period that is allowed? It does not mean that everyone that gets lifted will be banged up for a full day and a night.

    As I understand it - and I'm not sure I do - the ruling does not just mean that a detained person must be "allowed" to have access to a solicitor. It means that they must have access to a solicitor.

    I don't imagine that is always going to be straightforward. Let's say, for example, that there is a re-run of the Battle of Langside of 1980 when hundreds of old firm fans fought a pitched battle against each other. As I recall dozens and dozens of fans were lifted that day. If something like that happened again, how easy would it be to organise for every one of those people to get a solicitor before the police questioned them?

    Or would the answer be for the police just to arrest them straight off before questioning them? Presumably they are able to detain people they have arrested for 24 hours.

  2. Another point I forot to say - a friend of mine who used to be a police officer told me that the 6 hour detention period was often used to allow detained people to sober up before they were questioned. He said in the majority of assaults they dealt with people were under the influence so they were not able to question them there and then. So if you have to factor in a sobering up period for some people who are detained that would also need to be covered would it not?

  3. Indy,

    In common with some other folk, Highland Lawyer was having some difficulties posting his comments here. Here is his response to your questions:

    Someone who needs to be sobered up does not need to be detained - they are arrested for breach of the peace and/or drunk and incapable. Once arrested a person can be held until released or taken to next court sitting (but not questioned while in custody). Usually in this situation they are released on a police undertaking, and report made to the PF to decide if he wants to take it further.

    On the mass melee scenario, from professional experience, two (or more) officers will grab one of the participants, then arrest them not detain them. There are at least two eye witnesses, possibly with video, so questioning before charge is unnecessary.

    Now there may be a problem finding enough solicitors to provide independent representation to all involved, but it will be a lot easier to find them first thing in the morning of a court day e.g. Monday, than at OMG hrs Saturday night/Sunday morning.

    The new legislation is supposed to give all detainees a legal right to consult with a solicitor. During the interim arrangements, all detainees were able to consult with a solicitor due to the policy change - not a permanent solution but it means all detentions during that period comply with the Cadder ruling. There was therefore no emergency.

    Finally, yes not everyone will be detained for 24 hours just as under the previous rules not everyone was detained for the full 6 hours. The difference is that a percentage of people will be held for that time, whereas previously no-one was.