On Monday, Tuesday and Wednesday 24 to 26 May 2010 a seven judge bench will hear the last case of the term, the Scottish devolution case of Cadder v Her Majesty’s Advocate. The central issue is whether the use of material obtained in a police interview without legal representation rendered the applicant’s trial unfair contrary to Article 6 of the European Convention on Human Rights.  The Supreme Court will have to consider whether the decision of the Grand Chamber in Salduz v Turkey means that  Scots law should give suspects the right to legal representation in the police station.  This would be a fundamental change.  The Herald raises the spectre that this “Euro Ruling is a Threat to Scots Law” and suggests that thousands of cases could be affected.

Although the case is described as an appeal from the High Court of Justiciary, there is no substantive decision being appealed.  The High Court of Justiciary refused leave to appeal to from a decision of the Sheriff Court in Cadder on the basis that the appeal was unstateable in the light of its recent seven judge decision in McLean v Her Majesty’s Advocate ([2009] HCJAC 97).  The refusal to grant leave is being interpreted by all parties as a determination of a devolution issue and as a refusal of leave to appeal to Supreme Court, leaving it open to the Supreme Court itself to grant special leave to appeal against the non-determination of the devolution issue. All parties support the grant of special leave in this case to allow the Supreme Court to deal with the substantive point.

In McLean the seven judge bench of the High Court of Justiciary directly considered whether Salduz meant that Article 6 required that suspects in police stations should be legally represented.  It unanimously held that it did not.  It was said that the right to legal representation under Article 6(3)(c) of the Convention was not an absolute right, that the relevant question was whether the circumstance the lack of access to a solicitor prior to police interview made a trial which relied on his answers unfair.   The Court held that  provided that the court was satisfied that the guarantees otherwise available are sufficient to secure a fair trial, lack of access to a solicitor did not conflict with Salduz.  In any event, the Court was not obliged to apply Salduz as the Grand Chamber had not considered Scottish criminal procedure.  Even if Salduz held that Article 6 requires the provision of a lawyer as from the first interview, that principle should not be applied without qualification in Scotland.  In the circumstances, there was no breach of Article 6.

The McLean case was a reference before the trial.  It was remitted for trial and Mr McLean pleaded guilty.  As a result, there was no appeal to the Supreme Court.

The decision in McLean is difficult to justify.  Access to legal advice before police interviews has been standard practice in England since the 1980s and it is difficult to see why the position should be different in Scotland. As  John Scott, criminal vice-chair of the Society of Solicitor Advocates put it

People in Scotland other than criminal lawyers don’t realise quite how backwards our law is in this area. People will assume our rights are the same as in England and we have got the right to have someone sitting beside you in an interview.”

Turkey has changed its law to allow for a right to see a solicitor when in police detention, so it would appear that Scotland stands magnificently alone on the issue of not wanting those suspected of crime to be assisted in standing on their rights when in police detention.   It seems unlikely that the Supreme Court will follow McLean. It seems that slowly but inexorably Scots criminal law will be brought into line with English and European standards and practice.