New Judgment: HM Advocate v P (Scotland)  UKSC 44
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 question in this case is whether the principle in Salduz v Turkey (2008) 49 EHRR 421 extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether evidence which, although derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crown’s case will normally be admissible.
Held: the act of the Lord Advocate in leading and relying at the trial on the evidence was not automatically incompatible with the art 6(1) and (3)(c) right. Strasbourg has not suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accused’s art 6 rights. It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. It is another if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence in question. The question whether such evidence should be admitted has to be tested by considering whether the accused’s right to a fair trial would be violated by the leading of the evidence.