New Judgment: HM Advocate v Ambrose & Ors (Scotland) (Joined cases)  UKSC 43
06 Thursday Oct 2011
In Cadder v HM Advocate  UKSC 43, the Supreme Court held that the Crown’s reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under ECHR, arts 6(1), (3)(c). The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz v Turkey (2008) 49 EHRR 421, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply.
By a majority of 4 to 1, the Court found that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the art 6(1) and (3)(c) right; and in the case of G that it was incompatible. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. The correct starting point when considering whether the person’s Convention rights have been breached was to identify the moment at which he is ‘charged’ for the purposes of art 6(1).