Cadder Case - Background Q&A

Q. What is Cadder v HMA about?

A. The case relates to whether an accused person should have access to legal advice where they are detained by the police for questioning. Previously in Scots law an accused person suspected of committing an offence could, in terms of section 14 of the Criminal Procedure (Scotland) Act 1995, be detained and interviewed by the police for a limited period of time (up to 6 hours), without a right of access to a solicitor. Although suspects had a right to silence during interview, anything they did say could be used as evidence against them in subsequent court proceedings.

In its judgment in the case of Cadder v HMA, published on 26 October 2010, the Supreme Court decided this practice was contrary to the European Convention on Human Rights. Under the Scotland Act 1998, and the Human Rights Act 1998. Both the law of Scotland and the United Kingdom must comply with the Convention.

A copy of the decision can be accessed on the Supreme Court website

Q. What are the circumstances of the Cadder case?

A. In 2009, Peter Cadder was convicted of two assaults and a breach of the peace at Glasgow Sheriff Court following an incident in the city in May 2007. His conviction relied in part on confession evidence given in a police interview conducted without a lawyer present.

He contended that the procedure in Scottish criminal law that allows police to question people without legal representation for up to six hours before an arrest contravened his human rights.

This was based on the results of a test case at the European Court of Human Rights in Strasbourg that decided access to a lawyer during criminal proceedings was part of the fundamental right to a fair trial under the European Convention of Human Rights.

In 2008, the European Court of Human Rights, examining the case of Salduz v Turkey, decided that suspects should have access to a lawyer from their first interrogation, unless there were compelling reasons not to grant access.

Q. Had this issue been dealt with by the Scottish Courts previously?

A. Yes. Issues linked to the Salduz case have featured in previous cases in the Scottish Courts. Most recently in 2009 a panel of seven Scottish Appeal Court judges, including Scotland's most senior judge, Lord Hamilton ruled unanimously in the case of McLean v HMA that the judgement in the Salduz case was open to interpretation and that the current rules in Scotland were compatible with the Convention.

The Scottish judges ruled that, because of other measures that existed in the Scottish legal system to protect the individual's right to a fair trial, the Salduz point did not apply in Scotland. They commented that the current rules "have been in place for nearly 30 years without serious concern in Scotland that the interests of suspected persons are being prejudiced".

Read the McLean judgement in full

James Chalmers, the Director of Postgraduate Studies at Edinburgh University school of Law notes that the Scottish criminal justice system has "long recognised that everyone who comes within the criminal justice system's net must be presumed innocent until proven guilty beyond a reasonable doubt, and has developed a finely balanced package of safeguards to protect that presumption of innocence."

Former Solicitor-General Lord McCluskey says of the existing regime: "The Scottish Courts repeatedly held that the procedure was fair and reasonable and, above all, that it preserved a just balance between the interests of citizens and of society. In so deciding, the courts took account of the all the other features of Scottish criminal law and practice that balanced the rights of suspects, the interests of the public, and the duty of the criminal authorities to try to get to the truth."

Q. What is the jurisdiction of the Supreme Court over criminal matters in Scotland?

A. The main role of the UK Supreme Court is to hear appeals from courts in the United Kingdom's three legal systems: England and Wales, Northern Ireland and Scotland.

The Supreme Court acts as the highest court for civil appeals from the Court of Session in Scotland. The highest court for criminal appeals however remains as the Court of Appeal in Scotland.

The Supreme Court hears some criminal appeals, from other jurisdictions in the UK but not from Scotland.

However, the Supreme Court also determines "devolution issues" (as defined by the Scotland Act 1998). These are legal proceedings about the powers of the three devolved administrations. Devolution issues were previously heard by the Judicial Committee of the Privy Council and most are about compliance with rights under the European Convention on Human Rights, brought into national law by the Scotland Act 1998 and the Human Rights Act 1998. It was in this capacity that the Supreme Court considered the Cadder case.

The Scottish Government is very concerned that the role of the Supreme Court in criminal matters has gone far beyond that which was intended. Virtually any objection, challenge or point of law can be characterised as a devolution issue, potentially giving rise to a right of appeal to the Supreme Court. The First Minister has written o the UK Government stating that we want to see the High Court of Justiciary restored to being the highest authority in criminal matters in Scotland.

Q. What will happen to Peter Cadder now?

A. This will be for the High Court in Scotland to decide. The Supreme Court have referred the case back to them. Because this is still live, we cannot comment further on the specific facts of this case.

Q. Will all convictions where the accused has not had access to a solicitor now be quashed?

A. No.

This judgment meant that practices around the detention and interview of suspects had to be changed. It does not mean that all convictions obtained under previous procedure are immediately invalid. Indeed, the Supreme Court specifically reached the judgement in a way that will protect finality and certainty in almost all completed cases.

The judgement does apply to live cases and where this point has been raised in a timely manner during the consideration of a case. Even in these cases, the outcome of any appeal will depend on the facts and circumstances of individual cases. It may depend, for example, on the degree to which admission evidence was critical to the conviction and what other evidence exists. In other cases, the accused will have admitted their guilt either prior to or during their trial, and this may provide an argument for convictions to be upheld. In order for a conviction to be quashed an appeal has to be made and the court will need to be satisfied that there has been a miscarriage of justice. Even where a conviction is quashed, the Crown may move for a retrial.

Further information from the Crown Office on the implications of the Cadder case

Q. What has the Scottish Government done to deal with the implications of the judgement?

A. The Scottish Government worked for many months on contingency plans to respond to the possibility of an adverse decision in the Cadder case. It worked closely with partners in the Crown Office, ACPOS, Scottish Court Service and Scottish Legal Aid Board to mitigate the impact of this decision. We have also engaged with the Law Society of Scotland.

As the independent head of the prosecution system in Scotland, the Lord Advocate issued updated guidance to Scottish police forces in June in relation to the procedures for interviewing suspects in detention. These included access to legal advice.

See the guidelines

As a result of extensive and thorough planning, emergency legislation prepared by the Scottish Government has now been passed by the Scottish Parliament and has received Royal Assent.

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act:

Introduces a right of access to legal advice before and during questioning

Extends the maximum period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995

Creates a power for Ministers to amend the legal aid eligibility rules so that there could be automatic eligibility for criminal advice and assistance in certain circumstances. This would be done by means of regulations in the Scottish Parliament.

Reinforces certainty and finality in concluded cases by means of provisions on common law appeals and the tests the Scottish Criminal Cases Review Commission must consider.

Furthermore, the Cabinet Secretary for Justice has invited Lord Carloway, a senior High Court judge, to lead a review of Scottish criminal law and practice in the aftermath of the Cadder decision. The review will report within months, ideally before the election but certainly in time for further legislative action, if necessary, in the 2011/12 Parliamentary session.

Finally, the Scottish Government has announced that plans are well advanced for putting in place new arrangements, if necessary, for providing legal advice at police stations from early 2011. This would be intended to provide greater assurance that legal advice will be available when required. Interim arrangements that have facilitated improved access to solicitors will continue in the mean time.

James Chalmers, of Edinburgh University Law School said: "Anyone who thinks that the Supreme Court's decision operates in favour of the suspect should think again. The Scottish Government's legislation will almost certainly make the Scottish system much more like the English one. Apart from anything else, a maximum detention period of six hours can make it very difficult to get hold of a lawyer before the police have too little time left to conduct an interview."

Meanwhile, Chief Constable David Strang, speaking on behalf of ACPOS, said police would be able to deal with the changes introduced by the new law. He said: "The Scottish Police Service is accustomed to adapting its practices to accommodate changes in the law and is sufficiently resilient to cope with the changes which will result from this judgement."

Q. How many cases will be affected?

A. The UK Supreme Court limited the impact of the Cadder judgement to live cases only, meaning predictions about tens of thousands cases being cast into doubt have proved incorrect. At the time of the judgement, there were 3,471 "devolution minutes" lodged with the court, notifying it of the intention to appeal on Cadder grounds. At the same time, a small number of live appeals not yet heard by the court will now be done so on the basis of the Cadder changes. However, interim guidance to the police issued by the Lord Advocate in June means that substantially fewer live cases rely on admission evidence given in the absence of a solicitor. Current Crown Office policy in relation to the use of admission evidence should also further reduce the proportion of current live cases at risk.

Speaking in the wake of the judgement, Cameron Ritchie, the vice-president of the Law Society of Scotland said: "We don't think there will be a great number of appeals. The Supreme Court made it absolutely clear that if cases are closed and closed now, they will not be reopened.

"There may be one or two cases that will be reopened by use of the Review Commission but they will be very small indeed and if the case has not yet been appealed or if there is time left to appeal it, there are very short timescales, then these appeals can be heard but these could be numbered in less than the 100s. So any predictions that this will have a cataclysmic effect on the court system in Scotland are completely wrong."

Q. What is detention and what powers did the police previously have?

A. Under the provisions of the Criminal Procedure (Scotland) Act 1995, Scottish police were permitted to question a person suspected of committing an imprisonable offence for up to six hours without the presence of a lawyer. During that period, police were obliged to inform the individual that they were under no obligation to answer any of the questions put to them, beyond offering basic information such as their name and address. Although the individual was under no obligation to say anything during this initial detention period, anything they did say could be recorded and used in evidence at any subsequent court case.

Q. How has this changed?

A. We have now extended the detention period to 12 hours, with the option for that to be extended further to 24 hours if a senior police officer, not working on the case, agrees it is necessary for the investigation to be completed.

This extension is vital to help our police investigate crimes properly now that individuals have a right to access a lawyer during the initial interview. Because it can be difficult to access legal advice at all hours of the day - especially in the more remote parts of Scotland - the existing six hour period would have made the proper investigation of crime impossible.

This period is substantially less than the provisions already in place in England, where police are permitted to hold a suspect for 24 hours, extendable to 36 hours on the approval of a senior police officer, with extensions up to 96 hours possible with the approval of a magistrate.

Further details on the Association of Chief Police Officers Scotland reaction to the Cadder decision

Q. What changes have been made to the right of access to a solicitor?

A. Under the previous statutory provisions, an individual was not given an automatic right to a lawyer during the initial period of detention, but they were entitled to have a lawyer informed that they were being questioned. In June 2010 - in anticipation of an adverse judgment - the Lord Advocate issued guidance requiring the police to offer access to legal advice to all detained suspects.

Through legislation, the Scottish Government has now given suspects in detention the right to legal advice before and during questioning as required by the Supreme Court. The Bill allows for this counsel to take place over the telephone where appropriate, but it is not envisaged that anyone charged with a serious offence will rely solely on telephone advice. Offering an initial counsel by telephone will help to protect an individuals human rights, by ensuring they do not waive their right to a solicitor in an attempt to quicken the process.

Q. How does the Scottish position compare with other parts of the UK and Europe?

A. A direct comparison with other jurisdictions on this matter - including England and Wales - is not straightforward.

It is important to bear in mind that the criminal law and procedure of Scotland is built upon hundreds of years of legal tradition and consequently differs from elsewhere in the UK and Europe. While periods of detention will differ, so too do other wider rights afforded to accused persons.

As an example, in England and Wales, people brought into police custody have had the right to consult with a lawyer either before or during an initial interview since 1984 under the auspices of the Police and Criminal Evidence Act. However, suspects can also be held for a much longer period than currently permitted in Scotland.

In the European Union, the majority of member states allow for access to a lawyer during police interview. Those that do not are Belgium, France, Ireland and the Netherlands, and in each of these jurisdictions - except Ireland - steps are being taken by the courts or government to amend police interview procedures to comply with the Salduz judgement.

Q. Can the courts cope with this many appeals?

A. Extensive planning has been undertaken by the Scottish Government and criminal justice partner organisations, including the Scottish Courts Service. It is expected a relatively small number of test cases will decide the principles of how the ruling will affect appeals and lead to much greater clarity about how many appeals will need to be considered in court and to what extent.

Q. Who hears criminal appeals?

A. The Scottish Appeal Court sits in the High Court of Justiciary, and hears criminal appeals against conviction from the High Court, sheriff courts and JP courts. In this case, the UK Supreme Court has heard a criminal appeal case because it was taken to it on devolution grounds, with solicitors arguing that the way Mr Cadder had been treated contravened his human rights under the Scotland Act.

The UK Supreme Court is not the intended final court of appeal for criminal cases, and the Scottish Government wants to see steps taken to close this unintended loophole in the devolution settlement.

Q. Can those that appeal be released in the period until their case is heard?

A. A person can apply for interim liberation while their appeal is heard. It is a matter for the court to decide in such circumstances whether that is justified in individual cases, but it is by no means automatic.

Q. Can people who overturn their convictions seek compensation?

A. This has not yet occurred. If the position changes and courts find that any accused are entitled to compensation, then the Scottish Government will rightly consider the most appropriate response. Legislation introduced in the wake of the Somerville case is likely to offer some protection from compensation claims.

Q. What role does the Scottish Criminal Cases Review Commission have in the new arrangements?

The SCCRC retains the discretion to refer cases to the High Court if it is in the interests of justice to do so. In making this judgement, the Commission must now consider the need for finality and certainty in criminal cases alongside other public interest issues. The UK Supreme Court was clear that the interests of justice were served by the courts offering certainty in convictions to avoid large numbers of cases constantly being cast in doubt. In the wake of the Cadder decision, there was a concern that the SCCRC route could become a "back channel" for criminal appeals on Cadder grounds, and as such the Scottish Government moved quickly to head off this possibility.

The High Court does have the power to reject a case referred to it, but this can only be done if the reference is not in the interests of justice. Scottish courts have a long and proud history of acting independently and impartially and this power has been entrusted to them in the certain knowledge this integrity will be maintained.