Cadder v Her Majesty's Advocate (Scotland)

Summary

Michaelmas Term
[2010] UKSC 43

JUDGMENT

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

JUDGMENT GIVEN ON

26 October 2010

Heard on 24, 25 and 26 May 2010

Appellant Chris Shead Martin Richardson Anthony J McGlennan (Instructed by The Barony Law Practice)		Respondent Elish Angiolini QC, the Lord Advocate W James Wolffe QC Simon Collins Gordon Balfour (Instructed by The Crown Agent)

2nd Respondent & Intervener Alan Summers QC Eugene Creally (Instructed by Office of the Solicitor to the Advocate General for Scotland)		Intervener (JUSTICE) Aidan O'Neill QC Jodie Blackstock (Instructed by Herbert Smith LLP who were assisted by Taylor & Kelly )

LORD HOPE (with whom Lord Mance agrees)

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.

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.

In Salduz v Turkey (2009) 49 EHRR 19 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…

JUDGMENT