25 October 2010

'Twas the night before Cadder...

"T'was the night before Cadder, and all through the Court
Not a lawyer was stirring in wigly comport.
Silk stockings were hung on the QCs with care,
In hopes that their Lordships soon would be there.

The prisoners nestled all snug in their bunks,

While visions of liberty damped their trunks.
While Elish in her office was trying like hell,
To brain out the answer, the Court's judgment foretell..."

Some people like keeping their law and politics strictly separated. Just the law, no politics for me sir, an apologetic trill, with humble looks and benign smiles. Mostly, though, I think it is deeply politically problematic if legal issues go unnoticed, treated as obscure specialisms of a priestly caste of lawmen and women, replete with pious vestments, leaden manners and access to a charismatic vocabulary which stupefies most of the population. One of the themes I try my darndest to pursue on this blog is the interlacings and connections between law and politics in Scotland and why we should press on - past the process-server detail, past the heavy prose - and take our law politically seriously. Whether this is in terms of our juridical norms on domestic abuse, or the legal competence of the Scottish Parliament to call a referendum on Scottish independence, we should aspire to a public sphere where such issues are aired, understood, discussed, taken to heart. Although much of the time, the legal and the political saunter their separate ways, occasionally they crash brutally together, one concussing  and bruising the other with such violence and significance that even our dozing pressmen could not fail to remark the blunt trauma. Or to extend on our opening poetic theme, sometimes out of the law, there arises such clatter, hacks spring from the bar to see what is the matter. Tomorrow seems likely to be one of those rare days of intense scrutiny. After a long delay, after holding a hearing in May of this year, the UK Supreme Court is finally due to hand down its judgment in the case of Cadder v. H.M. Advocate. Paired down, the question the Supreme Court will answer seems deceptively simple:

"Whether the use of: (i) material obtained in a police interview without legal representation; and (ii) dock identification, in the criminal proceedings in which the Appellant was convicted rendered his trial unfair contrary to Article 6 of the European Convention on Human Rights."

The issue arises as a result of the judgement in the European Court of Human Rights case of Salduz v. Turkey and turns on the question of legal representation and police interrogation of suspects in the absence of a lawyer. As this late-evening post implies, I don't have the time at the moment to compose an appropriately fulsome exegesis. You can revisit my earlier posts on the case's progress which furnishes a few explanatory links, or in the alternative, read this Scotsman article of this morning, which gives you a flavour of what is at stake in the Supreme Court's judgement on the devolution minute tomorrow. There will be a number of folk, both legal and political, who will be awaiting the Justices' judgment with more or less taut nerves. We shall have to wait until tomorrow morning to see if, in the rhyming summary of the decision, the last verse reads thus...

"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!"

Update The United Kingdom Supreme Court has now handed down its judgment, in Cadder's favour. The Justices' full analysis can be read here.


  1. Having written my dissertation on Art 6 ECHR, this will be a highly-anticipated decision for me also, as for the rest of Scotland. Tis the witching hour here in Partick. One wonders if, had Art 6 ECHR been applicable hundreds of years ago, there would have been justice at Salem...


  2. The article that keeps the European Court busiest, indeed! We'll see how it pans out. If I was feeling cynical, I'd say that the answer to your anachronistic pondering depends on just how you define justice. Starchy observation of procedural norms, equality of arms(ish) - and ensuring your witch executed within a reasonable time period, so as to avoid the inhuman and degrading treatment of spending year after year in "death cottage"...