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The fallout from the Supreme Court’s decision in Cadder v. HM Advocate [2010] UKSC 43, 2010 SLT 1125, [2010] 1 WLR 2601,in Scotland at least, was significant.  Politicians were aghast that a Court based in London should, firstly, overrule a unanimous 7 judge bench of the Scottish Criminal Appeal Court and secondly, bring the Scottish law of criminal procedure into line with the rest of Europe to ensure that the United Kingdom does not fall into breach of it’s international obligations.

The Scottish Parliament was quick off the mark and within 24 hours had passed the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 to lengthen the initial time of detention available to the police and try to discourage, as much as possible, any appeals being taken founding upon the decision.  The dissent from the legislature in the course of the proceedings to pass the Bill was muted.

The Justices of the Supreme Court in their decision faced up to the potential floodgates.  They pointed out their own displeasure in old cases being re-opened and Scots law’s pragmatic way of dealing with these matters.  The deluge of aged appeals has not yet, at least, transpired.  It may be that the Scottish Criminal Cases Review Commission is set to deal with many of those.  The new Act strengthens the Commission’s powers to refuse to refer a case in the interest of finality and certainty (Section 7(3)(b)).  It also gives the power to the Appeal Court to immediately reject a case that has come to it from the Commission by way of a reference, again in the interest of finality and certainty (Section 7(4)).

Given the sea change that was brought about by the ruling – and regardless of whether this was a change wrought by Strasbourg or by London – there was clearly a number of current cases, which would be affected.  In advance of the ruling, the Lord Advocate issued guidelines, which certainly ameliorated the effects of the ruling for live cases.

The three cases due to be heard by the Supreme Court on 28th June 2011 will effectively rule upon the application of Cadder to the intricacies of the law of criminal procedure and evidence in Scotland.  There have been many challenges taken in the course of criminal trials and ongoing criminal appeals about the admissibility of police replies where legal assistance was not made available to a suspect.  Instead of seeing these filter up through the various appellate tiers, the Lord Advocate decided to use a power, available only to the Law Officers, to refer a case directly to the Supreme Court (para.33 of Schedule 6 to the Scotland Act 1998).

The cases of Ambrose, G and M deal with various challenges that have arisen since the ruling in Cadder v HM Advocate.  It is thought that they have a wider application to many different factual scenarios which arise day and daily in the Criminal Courts throughout Scotland.  The Justices of the Supreme Court, somewhat surprisingly for them, are without the benefit of an Appeal Court decision.

The thrust of the Crown submissions in these cases is that pragmatic considerations ought to temper the rigid adherence to principle, which, at first blush, Salduz insists upon.  In the well-known passage of Lord Wheatley in Miln v Cullen1967 J.C. 21; 1967 S.L.T. 35; [1969] Crim. L.R. 37 the configuration of various interests require to have regard not only to the interests of the accused:

“While the law of Scotland has always very properly regarded fairness to an accused person as being an integral part of the administration of justice, fairness is not a unilateral consideration. Fairness to the public is also a legitimate consideration, and in so far as police officers in the exercise of their duties are prosecuting and protecting the public interest, it is the function of the Court to seek to provide a proper balance to secure that the rights of individuals are properly preserved, while not hamstringing the police in their investigation of crime with a series of academic vetoes which ignore the realities and practicalities of the situation and discount completely the public interest.”

In response, the defence argue that the points of principle laid down by the Strasbourg Court’s Grand Chamber in Salduzv Turkey(2009) 49 EHRR 19, 49 EHRR 19, 26 BHRC 223, [2008] ECHR 1542 ought not to be diluted.  It is the sort of practical application of a point of principle that is ordinarily reconciled by lower Courts.  The Lord Advocate in taking these references has struck for certainty and finality.  The expedition of the reference procedure means resolving these sorts of questions authoritatively has taken a fraction of the time an appellant would ordinarily expect.

The Prosecutor’s argument is largely based on the case of Zaichenkov. Russia[2010] ECHR 185 and seeks to distil out certain pre-requisites before the right of access to legal assistance and advice is required.  It is argued that open-ended enquiry ought not to attract the further safeguard against self-incrimination. Article 6 protections laid down in Salduz only kick in when a suspect is identified and when suspicion focuses upon them.  In reality this argument would return to the law of Scotland a construct that, on one view, prompted the creation of the Thompson Committee on Criminal Procedure in Scotland (Cmnd 6218) back in 1975, namely “the Chargeable Suspect”(Chalmers v. HM Advocate1954 J.C. 66). The Crown also argues that requirement to offer legal assistance is only necessary when a suspect is in police custody and when he/she is subject to interrogation.

The defence response to each of these arguments is that they represent an unwarranted intrusion upon the principle laid down in Salduz and in Cadder.  Taken to their ultimate conclusion they lead to a breach of Article 6. It is said that the approach of the prosecutor does not give to Article 6 the significance attached to it by the European Court of Human Rights as an important buttress of the presumption of innocence, the right to silence, the privilege against self incrimination and the right to legal assistance.  The threefold analysis put forward by the Crown represents an unjustified refinement of the Salduz principles.  It overlooks especially the application of Article 6(3)(c) rendering theoretical and illusory the rights declared by Salduz when the jurisprudence of the European Court of Human Rights is travelling in the opposite direction, rendering the constituent elements of a right to a fair trial practical and effective.  This avenue of travel is supported by the European Commission’s proposals in relation to minimum procedural rights in criminal proceedings.

The most interesting case to be decided by the Supreme Court, of the four references sent to it by the Lord Advocate, is that to determine upon the status of evidence obtained in violation of Convention rights.  In the case of HM Advocate v P an interview took place, which, it is accepted, was in violation of the Article 6 rights of the suspect, in that it was absent legal assistance.  In the course of the interview, which will not be used in evidence, the accused mentions a friend.  The police subsequently interview the friend and take a statement that they wish to use in evidence.

In McGibbon v. HM Advocate2004 J.C. 60; 2004 S.L.T. 588; 2004 S.C.C.R. 193 the Crown were allowed to lead evidence obtained by way of covert surveillance.  This was agreed to have been obtained in breach of the accused’s Article 8 rights.  The Court of Criminal Appeal held that the conduct of the police in violation of the Convention was severable from that of the prosecutor in leading the evidence and was thus not caught by the statutory bar to Convention incompatibility (Section 57(2) Scotland Act 1998).  In essence, and after a relatively brief analysis, the act of the Crown was held not to amount to adopting the Convention violation of the police.

What this reference will ultimately decide is whether the violation of a Convention right in obtaining evidence renders it inadmissible by virtue of section 57(2), Scotland Act: the leading of the evidence would be beyond the powers of the prosecutor.

This perennial question has occupied many Courts in various jurisdictions.

In New Zealand, in R v Grayson and Taylor [1997] 1 NZLR 399 (CA) the Court of Appeal held that it could provide a remedy (exclusion) in respect of a breach of the Bill of Rights in the course of a criminal trial.  This approach emphasised the importance of vindication of the rights contained in the Bill of Rights Act (BORA) and faced up to the fact that, for many infringements of these rights, civil action and thus redress was unlikely.   In R v Shaheed[2002] 2 NZLR 377 (CA) however, that approach was refined with the court asking itself if exclusion was a proportionate remedial response, balancing the need for effective investigation of crime against condoning the breach.

In Canada, the Supreme Court in R. v. Grant,[2009] 2S.C.R. 353 laid down a test which ultimately asks whether the exclusion of evidence obtained in violation of a Charter right would bring the administration of justice into disrepute.  In deciding this issue the Court directs attention to the importance of the right in question and the corresponding seriousness of the breach.  Ultimately the balancing exercise is between the impact of acquiescing in such breaches laid against the societal interest in the detection of crime and the adjudication of allegations of criminality – not unlike the configuration of Lord Wheatley in Miln v Cullen,above

Conclusion

It is surprising that the Justices of the Supreme Court get an opportunity to consider the practical ramifications of a salutary judgement of theirs so quickly.  The prosecutor offers to the Court an opportunity to mitigate the difficulties created by their decision.