Cadder v HM Advocate
Encyclopedia
Cadder v HM Advocate [2010] UKSC 43 (26 October 2010) was a decision of the Supreme Court of the United Kingdom
which held that the way in which police in Scotland
detained suspects was not compatible with the European Convention on Human Rights
and was therefore unlawful in terms of the Scotland Act 1998
.
of assault
and breach of the peace
on 29 May 2009, following an incident in May 2007.
Cadder had been detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995. He was interviewed under caution by two police officers from Strathclyde Police
at London Road Police Office in Glasgow. In August 2008 an identity parade was held in which the complainer, John Tacey, was unable to identify anyone. In the subsequent court case, the Crown
relied upon evidence obtained within his police interview to help prove their case.
in Edinburgh
on the grounds that it was a breach of Article 6(1) (Right to a Fair Trial]) of the European Convention on Human Rights
(ECHR) that he was unable to have a solicitor
present during his interview. At the first sift stage a High Court judge refused his appeal on the basis of the full bench decision in McLean v HM Advocate ([2010] SLT 73), which had concluded that there were sufficient safeguards within Scots Law
to ensure that there was no breach of Article 6(1) by having no solicitor present. Cadder appealed against the refusal and three judges refused it again in November 2009 at the second sift stage. Another case referred to was Salduz v Turkey, a comprised to similar facts of Cadder however Salduz challenged on grounds of duress. Here it was held that Salduz self incriminatinbg statements whilst detained were not admissible. Differences are evident though as in countries like Turkey physical duress is more likely to occur than in the UK.
Cadder then sought leave to appeal to the Supreme Court of the United Kingdom
. This was refused as the Criminal Appeals Administration Judge was of the view that the refusal of the earlier attempts to appeal did not amount to a determination of a devolution minute. Cadder then sought special leave to appeal directly from the Supreme Court. They were asked to consider: whether Cadder was able to obtain special leave to appeal; matters surrounding his identification; and also matters relating to there being no right to have a consultation with a solicitor prior to being interviewed by the police.
Many cases in the process of prosecution which relied upon section 14 admissions to satisfy the requirements of corroboration
have fallen or have been successfully appealed as a result of the Cadder decision.
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
which held that the way in which police in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
detained suspects was not compatible with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
and was therefore unlawful in terms of the Scotland Act 1998
Scotland Act 1998
The Scotland Act 1998 is an Act of the Parliament of the United Kingdom. It is the Act which established the devolved Scottish Parliament.The Act will be amended by the Scotland Bill 2011, if and when it receives royal assent.-History:...
.
Facts
Peter Cadder was convicted at Glasgow Sheriff CourtGlasgow Sheriff Court
Glasgow Sheriff Court is a Sheriff Court in the Gorbals area of Glasgow, within the Sheriffdom of Glasgow and Strathkelvin. It is reputedly the busiest court in Europe....
of assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
and breach of the peace
Breach of the peace
Breach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
on 29 May 2009, following an incident in May 2007.
Cadder had been detained under section 14(1) of the Criminal Procedure (Scotland) Act 1995. He was interviewed under caution by two police officers from Strathclyde Police
Strathclyde Police
Strathclyde Police is the territorial police force responsible for the Scottish council areas of Argyll and Bute, City of Glasgow, East Ayrshire, East Dunbartonshire, East Renfrewshire, Inverclyde, North Ayrshire, North Lanarkshire, Renfrewshire, South Ayrshire, South Lanarkshire and West...
at London Road Police Office in Glasgow. In August 2008 an identity parade was held in which the complainer, John Tacey, was unable to identify anyone. In the subsequent court case, the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
relied upon evidence obtained within his police interview to help prove their case.
Court of Appeal
Cadder attempted to lodge an appeal in the Court of Criminal AppealCourt of Criminal Appeal
The Court of Criminal Appeal is the name of existing courts of Scotland and Ireland, and an historic court in England and Wales.- Ireland :See Court of Criminal Appeal ...
in Edinburgh
Edinburgh
Edinburgh is the capital city of Scotland, the second largest city in Scotland, and the eighth most populous in the United Kingdom. The City of Edinburgh Council governs one of Scotland's 32 local government council areas. The council area includes urban Edinburgh and a rural area...
on the grounds that it was a breach of Article 6(1) (Right to a Fair Trial]) of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(ECHR) that he was unable to have a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
present during his interview. At the first sift stage a High Court judge refused his appeal on the basis of the full bench decision in McLean v HM Advocate ([2010] SLT 73), which had concluded that there were sufficient safeguards within Scots Law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
to ensure that there was no breach of Article 6(1) by having no solicitor present. Cadder appealed against the refusal and three judges refused it again in November 2009 at the second sift stage. Another case referred to was Salduz v Turkey, a comprised to similar facts of Cadder however Salduz challenged on grounds of duress. Here it was held that Salduz self incriminatinbg statements whilst detained were not admissible. Differences are evident though as in countries like Turkey physical duress is more likely to occur than in the UK.
Cadder then sought leave to appeal to the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
. This was refused as the Criminal Appeals Administration Judge was of the view that the refusal of the earlier attempts to appeal did not amount to a determination of a devolution minute. Cadder then sought special leave to appeal directly from the Supreme Court. They were asked to consider: whether Cadder was able to obtain special leave to appeal; matters surrounding his identification; and also matters relating to there being no right to have a consultation with a solicitor prior to being interviewed by the police.
Supreme Court
In the case, the Court held that by not being able to have access to a solicitor prior to being interviewed by the police, Cadder's rights under Article 6(1) of the ECHR had been breached. Therefore Scottish Police can no longer question suspects without their lawyer.Significance
The period of detention without charge will be raised from six hours to twelve hours - with the potential to increase that to twenty-four hours on "cause shown" by a senior officer. The above change in law is more rigid than the access to the lawyer in police station during interview.Many cases in the process of prosecution which relied upon section 14 admissions to satisfy the requirements of corroboration
Corroboration in Scots law
The importance of corroboration is a unique feature of Scots criminal law. Scotland is the only jurisdiction in Europe that requires corroboration of evidence in criminal trials...
have fallen or have been successfully appealed as a result of the Cadder decision.